Huffpost Politics
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Andrew D. Gilman Headshot

Baseball 2012 Has Started, With Chief Justice Roberts as Umpire in Chief

Posted: Updated:
Print
Alamy
Alamy

Dear Chief Justice Roberts, aka, Umpire in Chief,

At your Senate confirmation hearing in September 2005, the cameras had just begun to roll when you said: "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

To paraphrase Yogi Berra, "It [the confirmation] was over" at that moment.

As a baseball fan and small business owner, I believe the current health care debate and decision on the Affordable Care Act requires you to live up to the role of umpire crew chief. The three days of debates were like a Rip Sewell Eephus pitch or Stu Miller curve ball. The pitch is agonizingly, slowly heading to the plate waiting for a ball or strike call. No one wants the Supreme Court to change the strike zone or the rules of the game. Make an honest call based on the game being played.

Let the players on the field, the elected Congress, play the game. Precedent easily holds that Congress has acted within its power and didn't overreach; changes should come from Congress revising or keeping a law, not a court creating new rules.

The Affordable Care Act deserves your leadership just as you have shown good umpiring skills in recent cases related to the Sixth Amendment right to counsel. You and fellow justices surprised many court observers for how clearly you have stated that Americans -- including legal, non-citizen immigrants -- are entitled to effective counsel.

Sure, the right to counsel is part of the Bill of Rights. Health care is not specifically enumerated in the Constitution or any of our amendments. That's why Congress acted and made new rules to make sure that all Americans have access to health care.

In baseball, umpires and managers meet before each game to go over the ground rules and how the rules of the game need to be interpreted for that ball park, not to make up new rules.

Think of the collateral consequences if your umpiring crew decides to overturn the play of Congress. Do you want to explain to the family denied insurance coverage because of a pre-existing condition that they will need to spend down their life savings to "qualify" for Medicaid? Do you want to "call the game" for all the states that are complying with the law and setting up insurance exchanges? Do you want to tell my daughter who has a job without benefits that she can't be covered under my policy?

The Affordable Care Act is playing in a stadium where the rules are known. The Constitution's Commerce Clause provides all the reasons you need to make the call. In the real life game of health care, we insure everyone now: it's just called the emergency room, Medicaid and Medicare, and somehow the system provides care to anyone in need.

As to the individual mandate: did you notice that Major League Baseball made requires third-base coaches to wear a batting helmet after a minor league coach was killed by a batted ball? On another field of play, America's highways, there's a sad irony in states that don't require helmets for motorcycle riders, then pick up the tab for the uninsured rider who hits his head on the pavement. Why should our tax dollars subsidize citizens breaking those rules?

Baseball changes to improve the game. Remember when pitchers were so dominant (think Bob Gibson)? The powers lowered the mound to get more offense in the game. Similarly, the insurance industry had its mound lowered and is now required to provide coverage to those with pre-existing conditions and children between 22 and 26 without coverage. Think of this as league expansion. A bit of watering down of talent but it increased the fan base. Some states and insurers had shown the way by agreeing to take customers with pre-existing conditions.

Remember judge-as-umpire metaphor. Congress has created a law that was originally a Republican party idea. In the 1960s, the "umpires" ruled that Congress had not exceeded its authority with the Civil Rights law of 1964. Similarly, Congress did not exceed its authority in the health care civil rights law.

Mr. Chief Justice/Umpire Crew Chief, many Americans took you at your word. Play the umpire. The pitch is in the air, call it a strike or tell Congress that it can change the strike zone again. Don't make up new rules.