Emanating "tax, not a tax" penumbras, the liberal imprimatur of legitimacy and so much for the judicial "restraint" of the Chief Justice of the United States Supreme Court
Would you rather be hung or shot? (...and be happy about it!)
We the People ordained and ratified a constitution as the centerpiece of a limited government alternative to the Divine Right of Kings and parliaments unaccountable to the distantly governed. Yet, despite continued lip service to the venerable document as the supreme law of the land, self government and the Rule of Law have taken two devastating hits over the past two weeks.
Last week, the President of the United States ordered his Secretary of Homeland Security to Act on his Dream to grant Democratic Party-vote-generating work permits to illegal aliens under the age of 30 that were brought into the country when minors. President Barack Obama claimed "prosecutorial discretion" as his constitutional executive power justification for departing from current laws passed by a Congress that recently rejected the Dream Act and which is granted the exclusive power to "establish an uniform Rule of Naturalization...throughout the United States."
This week, the Chief Justice of the United States John Roberts saved nearly all of Obamacare, passed exclusively with super-majority Democratic Party votes in the Upper House of Congress, but without even an agreement by a simple majority of the Supreme Court on a constitutional rationale.
Conservatives are scolded by Beltway Republicans to consider the Democrats' victory as Pyrrhic since the erstwhile conservative majority "limited" the power of Congress under the Commerce Clause to regulate only actual commercial activity. We can only hope that next week the Court "limits" its own power to act only on "cases and controversies" sans Clintonian tax either/or penalty "is-isms". We thought, in John Roberts, we were getting a true judicial conservative rather than a William O. Douglass ala Griswold v. Connecticut that can new "find" rules of law amid penumbras and emanations that later transmogrify into Roe v. Wades.
Every reasonable construction
Lest we forget, Roberts was joined in the result affirming the individual mandate to purchase a private health insurance policies or else, by the four usual liberal, Democratic Party President-appointed, suspects, i.e. associate justices. Perpetually un-moored to anything written and ratified by super-majorities in both houses of Congress or the States, Breyer, Ginsburg, Kagan & Sotomayor affirmed their party's Act on a 100+ year Dream of socialized medicine "firmly" on Commerce Clause grounds that their chief found unreasonable, despite these precedential recitations:
Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895), the question is whether it is “fairly possible” to inter-pret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32 (1932).
Yet, the Chief Justice had no qualms about joining the unreasonable coerced-Commerce Clause justification agreed to by four, with his own presumably "reasonable", yet singular, opinion on the power to tax inactivity that not one other associate justice would join?
The Constitution was supposed to save us from the exercise of arbitrary governmental power, yet Roberts sees his role as saving unconstitutional statutes from being called by their name, as he "reasonably" makes the terms "tax" and "penalty" "constitutional" synonyms.
Article I, Section 8 empowers Congress to "lay and collect Taxes...to provide for the general Welfare." Under the Anti-Injunction statute, taxpayers lack standing to contest the constitutionality of tax bills until they are actually levied. But, while it is important to ordinarily rule primarily on the actual operation and effect of legislation rather than mere nomenclature, prior case law has held that Congress can define the taking of money from individuals as either a tax or a penalty in a bill, with differing definitions in separate sections. But the court had always refused to treat such takings in the past as both.
Enter the heretofore considered conservative icon of narrow rulings and judicial restraint to re-write the actual Affordable Care Act as the "Roberts' Legacy Can't Afford to Care about Anything but the Court's Reputation with Liberals Act. Congress could have defined the penalty for not buying a Blue Cross Blue Shield health insurance plan as a penalty for the purpose of its own Anti-Injunction jurisdictional statute and as a penalty for the purpose of the substantive effect of the bill. It didn't, so Roberts, intent upon attaining a result he desired rather than following the law, did it for them.
And he thinks these illogical, rhetorical calisthenics enhance his legacy? How so? The Commerce Clause had never been interpreted to empower the regulation of inactivity and his lone taxing power opinion applies only to this case. Moreover, why would anyone expect John Roberts to eschew illogical, rhetorical Commerce Clause calisthenics in the future if the New York Times and Breyer, Ginsburg, Kagan & Sotomayor advise that the "court's reputation" depends on it?
Many ransom notes have been fashioned with words cut out of news The Gray Lady saw fit to print. Chief Justice Roberts has now turned our founding document that arose from the Miracle at Philadelphia into just another fish wrapper... and it stinks.
Conservatives do not wish for courts to enact their will into law after failing to convince electoral majorities with free speech and we always knew that the only real way to save these United States from Obama's fundamental transformations was via the super-majorities elected at the ballot box. In that regard, we want a Republican President and Senate to fill court vacancies. Little did we expect that we would wish to replace John Roberts.
“One man with courage makes a majority.” – Andrew Jackson
Atlanta Law & Politics columnist – Examiner.com
Charlotte Observer and Atlanta Journal-Constitution op-eds archived at Townhall.com.