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I Am Down on John Roberts.

By: Thomas Crown (Diary)  |  June 28th, 2012 at 12:11 PM  | 

RESIZE: AAA

[promoted from the diaries]

I’m taking time from reading the opinion (which itself represents taking time from billing clients), so this will be a quickie.

I’m not trying to gainsay Erick at length here (though concededly the title is a provocation), but I do want to get this out. We do not choose justices, on our side, because of policy results; we choose them for process, which we believe will usually, but not always, produce better results. Process matters in the law, because process is the law. When the law upon which the majority of our citizens through their representatives have agreed is followed, the result is axiomatically better either substantively or educationally, that is, because it shows us where our process is wrong.

This is even more important where the Constitution is involved, because the certainty of those processes is the bedrock on which our legal order is predicated. No certainty, no order; no order, no inferior laws.

While we should care about the Court’s result today, what should frighten us is the process used to achieve it.

What Roberts did today is to deflect mounting criticism of the court — including revived court packing schemes! — from the left. Roberts knows, from decades around conservatives, that we are no threat to the judiciary; not to put too fine a point on it, we’re like black voters with the Democrat Party. We’ll keep taking the abuse and coming back for more.

To preserve the Court’s institutional legacy, and to avoid an expansion of the Commerce Clause — a bete noire to the conservative movement for decades untold — he instead expanded the Taxation power. There is now literally no national policy that cannot be effected by placing in opposition to that policy a monstrously large tax, with the threat of fines, bankruptcy, and jail on the other side. None.

The idea that the mandate is a tax, and one allowed by the Taxation power, is facially ridiculous: You face a tax for existence, and can only escape it by paying for private insurance.

Taxation, as the Founders recognized, is an arrogation of power to the government. The power to tax is the power to control.

This is not to say we would have been better with Harriet Miers, or indeed, with anyone else. It’s to say that the Chief, who made the protection of the Court’s institutional image and entirely persuasive power his foremost goal, has gutted the limitation on enumerated powers to achieve that goal.

The result is awful. The process is worse.

COMMENTS

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  • tcgeol

    I agree entirely and must admit that I cannot understand Erick’s defense of CJ Roberts at all.

    • Thomas Crown

      His points are fair enough, and if you view maintaining this part of our constitutional order as worth gutting another part — I’m not being sarcastic when I say this — then his overall post is entirely logical.

      • proudmarinemom

        as mean as you can sometimes be, as mad as you make me, you speak the truth eloquently.

        There is nothing about this ruling worthy of respect. The judicial branch is no more.

        As we sit here and philosophize and pontificate about preserving our Republic, millions of our glazed-eyed countrymen will remain ignorant of the efforts of the Founder’s to separate the powers of government. Most cannot name the Justices of the Court, cannot tell you why there are fireworks on July 4th and do not understand what has just been taken from them. They will vote in November and for years to come with as much debate and deep thought as they would apply to choosing Prom Queen.

        • Thomas Crown

          It’s appreciated nevertheless.

          It’s not fair to impugn our countrymen for having lives not consumed with politics, and it’s only a little fair to be mad at them for not remembering the history of our nation.

          The answer is to teach them. Polarization comes with education; the more the citizenry understands about issues, the more they gravitate to the ends of the spectrum.

        • cbartlett

          The ignorant, uninformed sheeple spend MORE time & thought choosing the Prom Queen than they do ANY elected official.

          ?The danger to America is not Barack Obama but a citizenry capable of entrusting an inexperienced man like him with the Presidency. It will be far easier to limit and undo the follies of an Obama presidency than to restore the necessary common sense and good judgment to a depraved electorate willing to have such a man for their president. The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails America. Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince. The Republic can survive a Barack Obama. It is less likely to survive a multitude of fools such as those who made him their president.? quote from a Czech Republic newspaper, 2010

        • cbartlett

          The ignorant, uninformed sheeple spend MORE time & thought choosing the Prom Queen than they do ANY elected official.

          ?The danger to America is not Barack Obama but a citizenry capable of entrusting an inexperienced man like him with the Presidency. It will be far easier to limit and undo the follies of an Obama presidency than to restore the necessary common sense and good judgment to a depraved electorate willing to have such a man for their president. The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails America. Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince. The Republic can survive a Barack Obama. It is less likely to survive a multitude of fools such as those who made him their president.? quote from a Czech Republic newspaper, 2010

      • littlehouse18

        and basically rescinded Marbury, in my opinion. They said it’s not their job to protect the people from terrible (and unconstitutional ) laws. Their answer is the same as a Dem Congressman’s – “If you don’t like it, vote them out.” ‘Reasoning’ such as this would have no problem with Adolf Hitler ascending to power. It suggests that elected representatives could vote in tyranny (as they have here) and the court would do nothing to protect the citizens. And besides, the people did not vote in Obama and his minions to spew forth Obamacare. Obama lied about it in the primary. So even if the candidates get voted in on a lie, and pass laws with lies, Roberts et al. are fine with it. They are nothing more than a rubber stamp to Congress and POTUS. I hope they enjoy their vacations and easy lifestyle from here on in, for they are now completely irrelevant. Maybe they can help out Judge Judy or something. Constitutional matters are no longer their purview.

        With these last two votes I can hardly refrain from calling Roberts a traitor, at least a traitor to liberty.

        • daniel22

          there are eight other justices besides Roberts. The government has always had the ability to tax as that is how they survive. The Court is the weakest of all branches of government with absolutely no enforcement arm which is unlike the other two. In effect the Court cannot protect us from anything. It can issue opinions or rulings as it has done here.
          Politicians in the past have used SCOTUS as a scapegoat to avoid responsibility for an issue. Roberts took the sheet away from them this time and put it squarely where it belongs. The shoe is now on our foot as we are the ones to force politicians to do as they are supposed to do and act. It is in the political arena nobody can hide behind the robes of the Court and say there is nothing they can do as it is the law of the land.
          I just hope that people will remember in November who worked for the people and who worked for the party. I say it that way as it seemed that people like Boehner were busy trying to keep the good ole boy network entrenched and the new blood out.

    • mizzou1776

      Coward is the proper name for what Roberts is; I would not mourn his impeachment from Earth!

      • littlehouse18

        He’s probably enjoyed schmoozing with Obama, the Dems, and the liberal intelligentsia.

  • runner12

    The process is the problem. To make an unconstitutional ruling to deflect criticism of both you and your Court shows an unbelievable amount of cowardice.

    That may sound extreme, but I know of no other way of putting it. I just cannot understand Roberts could even think that is okay or acceptable.

    • Thomas Crown

      It’s a determination to preserve part of the Constitutional order pre-emptively from assault by the part of the political spectrum that views ends as worth any means. It’s an entirely logical reaction to the madness that boiled up on the left after oral argument.

      The Court’s power does not exist anywhere in the Constitution save its power to adjudicate controversies. To carry out its judgments, it must have a willing Executive funded by a willing Legislature. It relies entirely on its moral power to accomplish anything.

      This is not cowardice. It is a trade of part of the Constitutional order to save another.

      • runner12

        I am trying to understand the logic behind Robert’s decision.

        • Thomas Crown

          I miss (nt).

          • http://www.hakubi.us/ Neil Stevens

            .

          • Thomas Crown

            .

          • runner12

            the public criticism of each? If it is the former, then I can possibly understand. But if it is the latter, not so much.

          • Thomas Crown

            The Court’s power derives from its moral authority throughout the political spectrum. Deprive it of that and its orders on the greatest issues of all are worth less than the US Reports as kindling.

          • runner12

            While I understand Roberts a little more, I cannot agree with the step that he took. Sacrificing the Constiution, in order to preserve one’s Constitutional power does not seem to be an equal trade-off. Mainly for the reasons califgirl stated below. Men are fickle and will always criticize one side or the other. Large decisions like this cannot be based on that.

        • littlehouse18

          an unfavorable ruling, so just give in rather than have a conflict between the Court and the Executive? So just give in and have a de facto defeat of the Court’s authority rather than a public, official
          smack in the face?

          Too bad he didn’t think about smacking the American people in the face.

      • califgal

        I can’t agree that “it’s an entirely logical reaction to the madness that boiled up on the left after oral argument.”

        Instead, I’d say it’s an entirely “illogical reaction.”

        If a CJ acts out of a belief that he or any other justice can “silence” cries of any side, he is worthless. Cries rise and cries fall as the times change and just as people are born and die.

        I agree that what he did was expand the taxation powers–any governing entities can create a bill, present its funding mechanisms as something other than a tax, and when it’s challenged and taken to court, lower courts and SCOTUS can now claim that because of Justice Robert’s ruling, anything is a tax.

        If you can tax someone for existing, hell you can tax anyone as “prospective creators ” of human beings (babies) not yet even in existence.

      • Flagstaff

        that’s always the implication in sentences that include “we have to put principle over expediency, and you don’t seem to agree.”

        “We have to put expediency over principle” (which is sometimes correct) is what you seem to be saying Roberts just did, but it implies that Roberts was afraid that if he did what WE think is “right,” he would have put the Court in some kind of danger that couldn’t be overcome by open discourse and even confrontation in the public square. It’s a lot like “We have to destroy the free market to save it.” There is certianly a lack of confidence in the system on display, even if it isn’t cowardice.

        If you are right, it’s the worst reasoning possible in this instance.

        Roberts might have had a chance to be considered in the same class as the greatest of Chief Justices. He seems now to be in the class of the Also-Rans.

  • renl57

    For months now, we’ve heard from liberals that if the ObamaCare mandate is overturned, it “would have to be” blatantly political. They wouldn’t accept that there could be reasonable arguments against ObamaCare.

    Now I see conservatives here making the same type of argument: It can’t possibly be that Roberts reasoned out this opinion based on his understanding of the Constitution and the law; no, either he was blackmailed into doing it or else he’s playing some kind of political game.

    Rather than speculating on things for which we have no evidence, can we just judge the ruling on its own merits?

    Everybody seems to be assuming that the Supreme Court is composed of nine politicians rather than nine jurists. Either prove it or let’s just deal with the ruling as it is.

    • Thomas Crown

      It is a tax not subject to the Anti-Injunction Act that is within Congress’s power such that it can tax existence unless the existing person purchases the product of a private company.

      Essentially, it grafts the outer limits of Commerce onto Taxation.

      Still working my way through the opinion, but do you see something there with which you disagree?

      • Flagstaff

        make requiring its purchase constitutional?

        If the requirement is unconstitutional, how can we be “taxed” for non-compliance?

        • Thomas Crown

          The tax exists and can only be escaped by buying the thing.

          • ladydoc

            In math – not “the new math” –
            1% x 0 = 0,
            2% x 0 = 0,
            3% x 0 = 0,
            ……[every non-zero number] x 0 [zero] = zero.

            In the case before SCOTUS, not carrying insurance is properly represented by a zero – and thus the tax on not carrying health insurance should always = zero.

          • Flagstaff

            But I see the semantic distinction.

            So to put it differently, we are to be coerced by the threat of taxation into buying something that we couldn’t constitutionally be required by law to buy.

            Is that the same as “You don’t have to buy it, but if you don’t buy it we will tax you”? Other than semantically, that is no different from many other Nanny State laws, except they first say “you must buy (do) this thing, and if you don’t buy (do) it we will tax you”

            Really, how is it different to say the one vs. the other?

          • GregInFla

            And if the feds have unlimited taxing power, then why oh why was a constitutional amendment needed for the income tax? From this decision, I would be led to believe that even striking down the income tax amendment would not prevent an income tax from being levied. Where am I wrong, TC?

    • http://impudent.edublogs.org/ kyle8

      nt

    • keepcoolwithcoolidge

      They voted initially in March. A lot of the leftist bullying was after that.

      • cheetah2

        .

      • califgal

        conceive of as having an effect. Just as many people would have seen the Chief J. as a savior had he voted the other way, in fact, more, since the polls showed how unpopular this law is.

        So, either

        1)he truly believed his was a logical and Constitutional argument (I don’t buy this for a minute–he’s too bright) or

        2.) He really has fallen for the crappy, illogical notion that 5-4 decisions along party and ideological lines are somehow inherently bad

        or

        3) He cares so much about “landmark” legislation and his legacy that that got in the way of his thinking (don’t buy this either as he is a young man who will be on the court for a long time and if he really does care about such things, it’s likely more “landmark” legislation is likely to come to him in his lifetime, AND even more importantly, this law is so flawed, if it stands his name and his court will forever be attached to legitimizing a law that bankrupts an already reeling
        America or

        4) His social life, the circle of people among whom he and his wife travel will, he knew, reject him on a personal level (I have a hard time believing they would, if friends at all, actually do this) but for all I know, he is a people-pleaser and it’s his social circle he deep down wishes to please (and former profs like Larry Tribe who said how disappointed he’d be in his former student were he to reject the law)

        My friend the clinical psychologist says many people,jurists or not, it doesn’t matter, when it comes down to exceptionally hard decisions involving their personal concept of the self, choose the path that makes living with themselves the easiest. If he’s a people pleaser and this pleases his sense of self as fair-minded, pleases his social circle, even his wife, well…..there you have it.

        • littlehouse18

          If true, he does not deserve to be on the bench in any court.

          Some are saying that his epilepsy medicine is clouding his thought processes, I wonder if that could be part of it. I don’t discard the intimidation/blackmail/threat-to-family explanation completely, though it’s less likely.

          Interestingly, I hear that Scalia wrote his opinion originally as a Majority opinion. Evidence of this is that he supposedly left in a reference or two to the other side as the “Dissent” – ‘accidentally’, of course. Can anyone confirm this? Was Scalia trying to tell us something?

        • Flagstaff

          Let’s go with that.

  • BA Cyclone

    in the mere political sense. I can appreciate that this should be decided in Congress and not in the Court.

    However the greater argument is what the Court did with this decision, and that appears to be the real thrust of your argument.

    That Congress now appreciably has license to “tax” whatever it wants and call it such — regardless of its political underpinnings — is facially unconstitutional by my layman’s eye.

    It’s like the Boston Tea Party all over again. Today, the TEA Party is reborn.

    • congressworksforus

      Further reading of Robert’s Opinion makes me think he’s been rather clever. He deflects criticism of the court, neuters Obama’s re-election campaign, and sends a loud and clear message, not to Congress, but to us that the taxation power of Congress applies to pretty much anything it wants to do… and if we want to change that, we have to change Washington.

      The most despairing comment I have heard today was from a good (libertarian) friend of mine who simply said “Dammit; now I have to vote for Romney!”

      • ladydoc

        the end doesn’t justify the apparent judicial activist means.

        After all, what’s SO disturbing about this Decision:
        It escapes understanding how declaring Obamascare a tax IS actually constitutional.

        It’s a bitter pill prescribed today by Justice-Dr. Roberts, in the name of “judicial restraint”.

        Up is down, black is white, a penalty is a tax.

        • acat

          Some Dems in congress, when they wrote the thing, said it’s a tax. Obama said otherwise ..but I think we know he’s a liar.

          Look, the best hope for getting rid of this thing was always for Conservatives to put enough of a spine into Congress. The Supremes were always plan B.

          What this decision should do is to spur us on in implementing plan A .. and it also should give us some opportunities to restrict the Dems’ freedom to regulate down the road.

          Mew

          • ladydoc

            That’s how it’s a penalty. A penalty for failing to buy a product on the fed eral government’s say-so.

          • acat

            Until then, if nobody has yet been harmed, then nobody has standing to try to get it overturned.

            That’s the way this *works*. For it to work differently would be the very definition of an “activist judiciary”, something most conservatives have, at one point or another, objected to.

            Mew

          • ladydoc

            …and Roberts should have ruled – he being the Supreme Ruler as we’ve now seen – that the constitutionality question wasn’t ripe, come back in 2014. But he didn’t do that. He seems to be indulging himself in having it both ways.

          • runner12

            But instead Roberts tried to argue it both ways, which made zero sense. It made someone who is no doubt very intelligent look utterly foolish.

            This type of legal gymastics means either Roberts is crazy like a fox and knows something we do not, aka this is a plot to undermine O Care in stealth mode

            Or

            He cares more about his legacy and the “reputation” of the Court than the Constitution. For now, this is the option I am going with.

          • ladydoc

            …today’s opinion, as you said, makes him look utterly foolish, like a dupe, a dunce (or perhaps a knave?, I might add). His murkily “reasoned” opinion today can only burnish his reputation with the liberal wing of the Court, media, and political class – never previously his apparent philosophical compatriots.

            The phrase, “What the hell happened?” remains an unanswered mystery to me.

            Theory #1 seems like wishful thinking (and implies “activism” of a different sort, which wouldn’t leave Roberts smelling too rosy either.)

            A disasterous decision any way you slice it, as far as I can tell. Roberts is a pariah now, notwithstanding possibly garnering a sliver of credit for his position on the Medicaid expansion question and from (questionably) blocking further widening of Congress’s already broad powers under the Commerce Clause.

          • JSobieski

            So it can make sense to say that the Congressional label on something (i.e. tax or penalty) controls with respect to the anti-injunction act but does not control with respect to overarching issue of whether Obamacare is authorized under the tax power.

            I do agree with you however, the Court should have rejected the Commerce Clause rationale and kicked the can down the road on the tax issue.

          • Flagstaff

            If there’s no basis on which to require the purchase itself, if in fact such a requirement is unconstitutional, the only basis on which a tax can be levied for non-purchase is that old “if it moves, tax it” philosophy.

            But the fact that literally anything, activity or inactivity can be taxed isn’t news. As we’ve recently found out, energy producers are being fined (taxed, because now we know that any payment required by the government is a tax) because they aren’t blending an ingredient that doesn’t exist into their fuels.

            IMHO, this doesn’t let Roberts off the hook. Four of his colleagues had no trouble recognizing that this taxing aspect of the law was irrelevant to the bigger picture and to its constitutionality. He should have done so as well.

            Let’s air it all out. Somebody got to him. This wasn’t decided on its merits. And the idea that somehow he made his decision to protect his “legacy” or to protect the Court flies in the face of what is going to happen. As the Court has ignored logic, logic will soon ignore the Court.

          • JSobieski

            Obamacare was upheld on the basis of the tax power—there is no future case on this issue. Stare decisis applies.

          • ladydoc

            it’s the last word on the tax question. (If this was a lower court ruling, it would clearly cry out to go up to the Supremes for correction – but we’ve got nowhere to go since it’s the Supremes who churned out this circularly “reasoned” opinion.

        • UpLateAgain

          with a requirement of law has now been deemed a tax rather than a penalty…… apparently by judicial fiat instead of defining it by function. No matter. It’s law now.

          Of course, under our Constitution, before the government can penalize someone, they have to indict him for a violation of law, give him due process, and have him found guilty by competent judiciary. None of that applies if it’s a tax.

          Just think. We can now avoid all that messy and expensive trial stuff if someone refuses to pay their income taxes, or, for that matter, doesn’t signal before changing lanes. What they’ve done is failure to comply with a requirement of law…. so if we take time or money from them, all we have done is tax, not penalize them. them.

          IS THIS A GREAT COUNTRY OR WHAT????

      • littlehouse18

        ..

        • UpLateAgain

          I’m guessing… not having health coverage myself but paying for Mexican citizens to have coverage???

    • califgal

      Arizona and the border states feel. Sadly.

      • ladydoc

        Nt

  • Mike Ferguson

    Ok, so its a tax. It was the Senate bill that was passes. Since taxes can’t originate in the senate, can the bill be challenged on that bases, if nothing else just to force a re-vote to affirm it as a tax?

    • http://www.hakubi.us/ Neil Stevens
      • Mike Ferguson

        (nt)

        • http://www.hakubi.us/ Neil Stevens

          The Senate took an unrelated bill, gutted it, and amended it into Obamacare.

          • Mike Ferguson

            That took the economy sized bottle of Tylenol but I did it. Funny it only took me about 4 days total if I remember, but most of our elected officials couldn’t be bothered to read the same stuff a lowly nurse from Arkansas managed to muddle through.

          • GregInFla

            And were introduced in the senate. But I guess that’s why Harry Reid gets paid the big bucks.

    • Thomas Crown

      Don’t have time for a full analysis, but briefly, it’s a political question because the House adopted the Senate’s measure as its own in reconciliation. Court would shoot down the argument cold.

    • avgjo

      Can waivers to federal taxes be given on an individual basis?

      • http://www.hakubi.us/ Neil Stevens

        ..

        • avgjo

          Touche.

  • Joshua Persons

    Thought-provoking as always, Thomas Crown. But honestly, much less just-plain-provoking than usual. Either way, good to see you again.

    • Thomas Crown

      Give me a few minutes and I may even be able to name one.

      • Melody Warbington (rwm52)

        if you please so I can vent my rage vicariously through you. It’s better than throwing something at the wall which is what I’m tempted to do at the moment.

        That said, what do you think CJ Roberts decision portends for future decisions and the direction or tone of the Court?

      • Mike Ferguson

        LOL, now seriously, I do want to thank you for always being willing to answer questions, it is appreciated.

  • noncon

    I think the last time it happened was the line item veto, in the 1990s. See http://thomas.loc.gov/cgi-bin/query/D?r105:1:./temp/~r105ZWLumd:: to see the response back then.

    Also, I think we give Obama too much credit. The healthcare mandate was not the big deal that we have made it into, and unfortuantely, having made it a big deal, we handed him a big success.

    What’s the idea behind a mandate? It’s to go after free-loaders. It’s to go after the guy who says “I’m not going to buy insurance” but then ends up in an ER and says “Government, please save me.” That’s why Romney was in favor of a mandate, that’s why Gingrich was too, and the Heritage Foundation. You know I am right – look it up. You know what is real socialized medicine? Medicare. Medicare is single payer, Canadian-style socialism. Why aren’t we going after real socialism, instead of pretend socialism?

    I think we’re all twisted up. We’re against the conservative bedrock principles of no free loaders that we had in the 1990s, and we are against the conservative bedrock principle of no judicial activism, and we are in favor of socialized medicine in the form of medicare. What we ought to do is say, good for Roberts, now let’s go out there, elect true conservatives, and eliminate Medicare. Period.

    • Joshua Persons

      I’ve never heard anyone push “no free loaders” as a bedrock conservative principle. The real principle is called “individual liberty”, and if you don’t understand how Obamacare infringes on it, I doubt you’re a conservative.

      • noncon

        That’s why welfare is wrong. That’s why food stamps are wrong. That is the same thing as the principle of personal responsibility.

        Look, in the 1990s, this is what conservatives at the Heritage Foundationwere saying: “But as part of that contract, it is also reasonable to expect residents of the society who can do so to contribute an appropriate amount to their own health care. This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan — one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family.”

        And we cannot ignore that Romney put a mandate in his plan. How can you support Romney for President while simultaneously saying Romney infringes on personal liberty? Am I crazy or is that not a collective conservative flip-flop?

        Look – you can be against socialized medicine, I am. But be against the real socialized medicine, which is medicare. Phase it out. Those on medicare continue to death. Everyone else continues on their health insurance, paid for by them, until death. That also fixes the deficit eventually.

        • http://moelane.com/ Moe Lane

          Amazing.

          Shoo.

          • http://www.hakubi.us/ Neil Stevens

            They think they can sneak in their talking points.

          • Joshua Persons

            But my judgment was the same.

          • Grim

            …and “no freeloaders” is a powerful message.

            Talk to the mom working a second job as a grocery store clerk just to make ends meet as she watches Food Stamp slackers buying steak and Coca-Cola while her kids eat bologna.

            Talk to the cattle farmer working 60-hour work weeks to keep his business running while the farmer next door is being paid for the fields to lie fallow.

            Talk to a sailor making less than minimum wage and sleeping in a room that is unfit for federal prisoners.

            Talk to the engineer who is paying 50% more for healthcare so some college kid doesn’t have to take any personal responsibility.

            Talk to the stay-at-home mom trying to budget a $100 mobile phone bill so some all-cash street corner pharmacist driving a Lexus can get a phone from the Federal Government for free.

            Talk to Grandma going to see her grandkids and paying extra for her airline ticket in order to have 2 dozen TSA agents standing at the X-ray machines doing nothing.

            Talk to the Germans as they are being asked to retire at 70 so that the Greeks can retire at 50.

            Talk to the entrepreneur who bet his business on a new natural gas drilling process who has to bow and scrape at the feet of some do-nothing EPA bureaucrat in order to get a permit.

            Yes, it is class warfare. It is the do-somethings vs. the do-nothings, and I think the do-somethings are on the conservative side.

          • Joshua Persons

            But it’s not a “bedrock conservative principle”, and it’s certainly no conservative defense for the Obamacare tax.

        • garfieldjl

          Why should I have to pay for insurance coverage in case I get pregnent?

          Excuse me, but I’m a guy and I’m still a virgin. Why should my insurance have to cover the advent of me getting pregnent when it can’t happen in the first place… Nor is there a chance that I’ve gotten any girl pregnent either, so why should I have to pay insurance concerning pregnency?

          I don’t need insurance for abortion (and I’m morall opposed to abortion due to religious grounds), why should I be paying for that?

          There are people that pay cash when they see doctors go to hospitals, etc. Why should they have to get insurance when they are paying out of their own pocket and perfectly happy to pay out of their own pocket?

          This isn’t about people free loading, this is about whether or not we are property of the Government.

        • Joshua Persons

          “No free loaders” is not in any way, shape, or form a “conservative bedrock principle[]“, as you stated. It’s a good rule of thumb, but in its conservative form it flows from the principle of individual liberty. Liberals can agree to the freeloader principle while denying any liberty — and that gets us to Obamacare and the mandate. So it’s liberty we need to stand on.

          Heritage was wrong in the 90′s and they’ve admitted it. The problem is that they were assuming the infringement of individual liberty as a given, and trying to work out a conservative solution from there.

          I’m not defending Medicare here. It’s just insanity to suggest that Obamacare should be a secondary issue for Republicans, either in principle or in politics.

    • http://impudent.edublogs.org/ kyle8

      It is rare for the court to rule in anyway that constrains the raw power of the central government.

      You see they love to strike down things like a line item veto or balanced budget because you see that would actually result in less government power.

  • Cheetah772

    No one lives forever. I can pretty much guarantee you this: somewhere in distant future, the Court will have a solid liberal majority. Nothing stays the same forever except for our Lord Jesus Christ.

    This will give the future liberal majority TWO openings: the expansions of Taxing Power and Commerce Clause. The today’s ruling does not prevent the expansion of Commerce Clause on other issues. The door may be shut on Obamacare, but not other future legal issues.

    This is like trying to balance a sinking ship, sometimes it can be done, but more often it will sink anyway.

    That’s how I am viewing the Court’s ruling on Obamacare.

    Feel free to agree or disagree with me.

    • http://impudent.edublogs.org/ kyle8

      That ancient document, the Constitution, which set up a limited government was already on life support from numerous rulings, but now it is truly dead.

      There is essentially no real curb on raw centralized power now. None, Try to find one left in the constitution, It does not exist.

      Here is your tax for not buying life insurance
      Here is you tax for not buying solar cells
      Here is your tax for not buying diet products
      Here is your tax for not buying an electric car.

      States rights were trampled long ago, The Commerce Clause was abused long ago. Kelo destroyed your private property rights from arbitrary actions, and now the last little bit of private sovereignty we had left is gone.

      • renl57

        You get a big tax credit for putting solar panels on the roof of your house. You get a big tax credit for buying an electric car instead of a gasoline-powered one.

        But that money isn’t “free”; the money to run the Government comes from somewhere. Those of us who don’t buy electric cars or solar panels pay taxes so you don’t have to.

        It’s exactly the same idea:

        Everybody pays $1,000 in taxes and then those who have bought health insurance gets it back in the form of a $1,000 tax credit.

        Everybody pays $5,000 in taxes, and then those who have bought an electric car get back $5,000 in a tax credit.

  • moonmad

    The President and Congress create a big problem. Instead of facing it they push it around and hope the courts(eventually the Supreme Court) will correct things for them. Now the court to save itself has sent the problem back to the people to fix by voting for people that will represent them as they promise. This sounds really clever. I pray it’s cleverness is not wasted on us common dullards. For this we need Lawyers and Judges? No what we need are leaders with a constitutional vision. This and the campaign finance reform decisions show us how puny the courts are.

  • http://blog.beliefnet.com/cityofbrass/ Aziz Poonawalla

    it’s a minor point, but worth making – Harriet Miers’ nomination was withdrawn and then Samuel Alito was nominated. So Miers being better or not is irrelevant to the question of Roberts.

    • Thomas Crown

      Indeed, and I thought of that while writing it; I was responding to garbage showing up in my Twitter feed without sourcing it.

      • http://blog.beliefnet.com/cityofbrass/ Aziz Poonawalla

        my past few forays here haven’t exactly been well-received, so rather than risk my god standing further I’ve largely just tried to read and understand.

        I’m as liberal as ever, but Redstate is daily reading, to keep me honest. :)

  • rabun1016

    If public opinion and the Constitution were amended regarding prohibition, and then changed back a few years later, it shows that public policy is at heart a matter of thought leadership and logical persuasion.

    If John and Mitch were the leaders in the 1920s, we would still have prohibition today.

    Sadly, Boehner and McConnell are awful. They are unpersuasive. They have a personal style that is not endearing and may be revolting. How they rose to their positions of power is a comment on how bad the Rep party has been in supporting good people. I don’t wish personal misfortune on anyone but a couple heart attacks could really help this country.

    • http://moelane.com/ Moe Lane

      If you can’t control yourself in public, withdraw until you can.

      • rabun1016

        Did not realize people would read it in a much more aggressive spirit than which it was written.

    • streiff

      if you can’t remain lucid when posting on this, then find another hobby for the next few days.

  • Marcus_Traianus

    The legal gymnastics, self-preservation, political nature and future use of this decision should scare the pants off anyone that actually believes in our Constitution.

    Anyone trying to soft-pedal the implications or the detestable means Roberts used to reach is either being deliberately misleading, very misguided or is grotesquely uninformed.

  • annas

    Is the new Earl Warren!

    • keepcoolwithcoolidge

      Warren and Roberts are 2 different types of justices. Warren takes on political questions he likes, Roberts refuses to do that.

  • politicalqrm

    and Congress has the right to levy taxes, they can repeal this tax?

    I’m very disappointed in Roberts also, but by putting it in the category of a tax, it flies in the face of the the Obama administration’s insistence that it wasn’t. Does that make it easier to repeal by a GOP majority in Congress?

    This decision has my head spinning…

    • http://impudent.edublogs.org/ kyle8

      How many programs giving away things to possible voters has congress ever repealed?

      • acat

        At what point, to borrow from Thatcher, does the welfare state run out of other peoples’ money?

        Quite a few relatively popular give-aways went away under Reagan .. including a largely government-funded series of mental health “sanitariums”.

        Mew

        • http://impudent.edublogs.org/ kyle8

          we haven’t got there yet. just wait a little.

    • orwell

      No, wait. It’s a penalty.

      No, wait; it’s a tax and a penalty.

      No, it’s neither, and it’s both, and it’s neither. Unless it is; so then it’s ok.

  • http://www.ufcle.com/willis/willis.htm Steven Willis

    Capitations are taxes paid by every person, ?without regard to property, profession, or any other circumstance.? Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered).

    The “other circumstance” is taken out of context; plus, it appears in one opinion out of five justices.

    Hylton involved an excise on the use of a carriage. No tax has ever applied to inactivity.

    The CJ never addressed this. Essentially, he gutted the apportionment requirement – which was the central issue to the three-fifths compromise and thus the Constitution.

    The result is likely political: repeal and the lack of will by Congress to use this new, much broader taxing power. I would predict if Congress attempt to tax someone for not buying broccoli, Courts will ultimately strike it down and reverse this unfortunate opinion. But, I doubt Congress will do that in my life-time. Thus, the commerce clause and necessary and proper clause victories mean much.

    • Thomas Crown

      Axiomatic to human experience is that when power exists, someone will take and use it. It doesn’t have to be a gigantic power use at first, but it will be used.

      Can you seriously not see a policy where, for example, a refusal to do business with a closed shop is met with a Working Assistance Tax? Just a small one, at the start.

      And — I’ve taken a break and haven’t even gone digging into the cited cases yet — why on Earth would the court reverse itself there?

      • tnfriendofcoal101368

        The Courts would not, when has the Court ever reversed itself? The only times I can think of are Brown and Citizens United. SCOTUS just green lighted the Government passing any mandate and calling the penalty “for not participating” a tax i.e. to quote Justice Kennedy the decision “changes the relationship of the Federal Government to the individual in the very fundamental way”.

        There is no going back from here. SCOTUS has granted to the government the mechanism by which it can mandate and penalize it’s citizens on any topic it deems fit without fear the courts can or will intervene. We as Citizens can only hope we elect Presidents, Congressman, and Senators who will not use the hammer, SCOTUS just gave them.

        • littlehouse18

          are now the property of the government, just waiting till they choose to exercise their ownership.

  • SteveM

    There’s no other way to slice it. It took the left 80 years to tear this country down and turn it into a Bismarckian social democracy, but they’ve done it.

    Roberts? him. There’s no logic on this planet that makes this decision okay. You can be taxed for merely being alive now. Swell.

    And if he let political considerations influence his decision? Then he should be impeached. That’s not his job. His job is to interpret the Constitution and apply smell tests to cases presented in front of him.

    But at least John gets to keep going to all the DC cocktail parties.

    • pjpetzold

      You could always be taxed just for being alive, since 1913 anyway. The only reason we haven’t is because they hadn’t gotten around to it yet. We’re just paying for past mistakes.

    • 6eorge Jetson

      Rest In Peace, Dear Fellow. You spawned the greatest country on Earth, a beacon of liberty. We will live off of your impact for some time to come.

      The Constitution’s role as protector of liberty has been in a sickly condition, in danger of Death from 1,000 Cuts. Today, it’s head was cut off. No limits.

      Everything is now political. I suggest we conseratives admit that.

      • checkmate2012

        more than ever today. Or a pic of Roberts upside down…no commerce clause but tax all the Congress wants. Aarrgg.

  • annas

    I wish I could believe that the Tea Party is reborn. But does it matter? It seems today that what the people want is irrelevant.

    • http://www.hakubi.us/ Neil Stevens

      The people rule through their elected officials, not through 9 oligarchs in black robes.

      • congressworksforus

        (Which used to be a rare occurrence ;-) )

        Anyway, whatever we think of the decision, or Robert’s Opinion, or if the Republic died today, or whatever else has us teed off today… if this isn’t a WAKE UP call to people, I don’t know what is…

        • http://www.hakubi.us/ Neil Stevens

          …

  • evilbloggerlady

    But hey, it means that elections matter. We better get to work on changing this mess. I am angry, but it has to be directed to something more productive. And that means fighting to reverse this mess.

  • keepcoolwithcoolidge

    ” There is now literally no national policy that cannot be effected by placing in opposition to that policy a monstrously large tax, with the threat of fines, bankruptcy, and jail on the other side. None.”

    From the decision, page 4

    “.. The payment is not so high that there is really no choice but to buy healthinsurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.”

    Those seem like limiting principles to me. A monstrously large tax would be high enough that there really would not be a choice. Roberts has left a back door for future challenges.

    • Thomas Crown

      Unless the ruling says, We find that the tax is constitutional because it is not large enough to leave no choice, is not limited to willful violations, and is collected solely through the Internal Revenue Service or other agency duly appointed by Congress to collect taxes, it is therefore a constitutional exercise of the Taxation power, then these are just words.

    • cheetah2

      I disagree with what he says about the small size of the payment being important. That is something that infuriates me. People will accept this just because they are only being robbed a little? Our founding fathers didn’t think that way.

  • WA_Cowboy

    It seems to me that labeling it as a tax and broadening the breadth of the taxation power was the “safest” place to go — assuming Roberts was indeed following the logic outlined in EE”s diary.

    Taxes are always unpopular. Nobody likes new taxes (except the most liberal democrats). Even in the Blue state of Washington, 66% of voters approved an initiative that requires a 2/3 majority in the legislature in order to raise taxes.

    I think that he felt expanding the power to tax was the safest place because just about all taxes are always opposed by a sizeable majority of the people. Combine that with the deep unpopularity of Obamacare and perhaps the path to repeal has opened substantially, provided that we take the presidency and gain a majority in the senate.

    still would be happier if the whole thing was overturned, but there is a silver lining to this

  • evilbloggerlady
  • Marcus_Traianus

    I marvel at the way Roberts found this to be a tax, but not applicable under the Commerce Clause.

    He appears to use the converse argument (really arguing against himself) to establish it as a tax. But it has the same end affect.

    I wonder if Roberts is familiar with the American Revolution or grounded in any way about the American history around taxes?

  • renl57

    …is that liberals are still not satisfied with the Roberts decision.

    You might think they would be happy that ObamaCare’s mandate survived the Supremes’ scrutiny.

    Nope.
    Because they wanted the Commerce Clause to be the justification for compelling the purchase of insurance, not the taxing power:

    Jonathan Chait: “The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading ? if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce.”

    And I’ve seen similar stuff from a number of other liberals.

    Liberals absolutely refuse to make any distinction between regulating existing behavior vs. compelling new behavior. To them, you are born into regulation. Not only can the government say to a restaurant owner that he can’t discriminate against black customers, but they can force the restaurant owner to open a new restaurant in a black neighborhood.

    “Compel” and “command” are similar verbs. What liberals are asking for here, is a kinder-and-gentler command economy.

    And it’s equally disheartening that Romney isn’t a deep thinker about those things. He’s a technocrat:

    “High unemployment? Don’t worry! I’ll fix it!”

    “ObamaCare? Don’t worry, I’ll repeal it!”

    But this broader issue–what limits are there on the Government’s ability to force things down our collective throats–he doesn’t grasp.

    Which means he doesn’t get what animates the Tea Party movement either.

    • congressworksforus

      He was pretty “on the nail” in his PC today, referring to a choice between large or small government.

  • pjpetzold

    I am irritated with most of what the federal government does. I consider it a win that the commerce clause was limited in the decision, and I don’t really see the taxation powers as having been expanded, the possibility has always been there.
    Rather, the powers are simply being used in a new way that hadn’t been considered before. Hopefully this will invigorate people to implement tax reform in an entirely new system, such as the Fairtax and repeal the 16th ammendment. Otherwise the expansion of the Feds will never end.

  • Libertarian Republican

    …is I REALLY wish the Club for Growth guys had either gotten Spectre earlier, or held off. EVERYONE should remember that turncoat was effectively the deciding vote.

  • Jack_Savage

    But it is a big gamble.

    Crown is right – the process and the product stinks. But Roberts cannot protect America from sticking its collective willie in a car door and shutting it. That’s not his job. By calling the mandate a tax – which is what it is – and leaving everything intact, he essentially throws everything back to a lower court – the American voter and the political process.

    We nominated John McCain. We lost. Obama won. Elections have consequences. This is a consequence.

    Given a no-win situation, Roberts chose to defend the institution of the Supreme Court, assuming it will be around longer than Barack Obama or Obamacare.

    • windwaker24

      not his Court’s perceived reputation. If something is an affront to the Constitution, it’s his job to snuff it out. The Founders gave them lifetime appointments, so they can be independent of public pressure and from the pressure of the other 2 branches. If Mr. Roberts couldn’t handle the pressure that comes with the office, he should have told Bush “thank you, but no thank you.” and kept walking.

      • cheetah2

        Scotus members are supposed to know more than the average citizen about the Constitution. Isn’t that why they have the job? If the Constitution is being violated, it doesn’t matter a whit that whoever did the violating got elected to office by we the people.

        • ctredstater

          This decision reminds me of Little League parents that want to award both teams a win after a close game. Roberts gave the win to the Constitutionalists, then whisked it away with a deal with the statists.

          Mark Levin said it . Our Constitution was damaged today. A Constitution that belongs to all Americans – past, present and future. Protection of it is Job #1 for CJ SCOTUS. If that is too big a job for CJJR, I agree – he should have taken a pass.

          If it turns out that he switched his vote late in the game, as some are suggestion – it is almost beyond imagination.

          America is not the same as it was twelve hours ago. Disheartening, to say the least.

          • Jack_Savage

            Agreed. But why?

            The Constitution was not damaged today. It has been damaged every day since Obama took office. It is not up to John Roberts to protect us. It is up to us to protect ourselves. Nominating John McCain was not a step in that direction, and it cost us.

            This is not so much a Constitutional issue as it is a political issue. It needs to be dealt with that way.

            We need to face the fact that there may be a majority of Americans who won’t mind being Greeks.

          • avgjo

            who won’t mind being Greeks. There is a portion that reviles the idea. I think the latter is somewhat bigger. There is a portion that does not/can not think for itself. It forms its opinions based on what it sees on tv, internet and in the schools.

            Either of the first two groups plus the third = majority.

            this is why I do harp on the idea that the only real solution for conservatives is to focus on taking back institutions. If by some miracle/respite from God we manage to pull out of this morass, we’ll find ourselves here again shortly if we allow the left to hold on to institutions.

      • Jack_Savage

        I think that he saw this as a political issue, first and foremost. He clarified things, then has put it all back in the hands of the American people, where it belongs.

  • windwaker24

    Repealing Obamacare will not fix this problem. The precedent has be set for further abuse by someone on a later date. Chief Justice Arnold, er, Roberts just shredded the Constitution, perhaps beyond repair (Congress is not going to let go of this bountiful goody he just gave them). All in the name of cowardice! I first noticed his weak knees with his lame response to Obama’s dress-down of the Court at the SOTU. Then, over the Kagan recusal mess. The guy is no leader. And to do this all on the anniversary of Madison’s death makes it all the more painful. 25,000 Men gave up their lives in the American Revolution to rid us of oppression. Roberts just put us back there!

    • littlehouse18

      They didn’t die so that their descendants would suffer even greater tyranny in the future.

  • Common_Cents

    What a BS ruling. He is a coward and found some BS reasoning to rationalize his cowardice. PERIOD.

    Ask 300million americans if taxes in this case aren’t mandatory and you’ll get the same answer.

  • Darin_H

    President Bush/Karl Rove had the plan of getting through stealth nominees, I think Miers ended that. President Romney will appoint solid conservative Justices, ones with track records, or we’re all going to Miers him too.

    • congressworksforus

      Bush was faced with mounting criticism over his replacement of a woman (O’Connor) with a man (Roberts), so he had to nominate a woman when Rehnquist passed away.

      He always wanted Alito and the best way to make that happen was to nominate Miers, who conveniently immolated herself not only on the pikes of the Senate Democrats, but also the Senate Republicans.

      And then, in a flash, we got the real choice.

      • Darin_H

        I know a parody account when I see one.

  • tnguy

    It wasn’t a political calculation by Roberts, nor was it something he did to politically aid the republicans. He did it because, as Rush said earlier, he’s an inside the beltway establishment republican who thinks the federal government is the center of the universe. Just like the President who appointed him.

    If you’re conservative, you’d do well to stop trying to spin this, stop pointing fingers at communists who are just being communists, and look at our real problem, those we’ve elected to represent us. It makes no sense to rail about Obama or the liberal justices, when they’re promoting exactly what they believe in. It’s the people that we are voting for who – time and again – do not govern based on the principles for which they campaigned. Which makes it difficult or impossible to draw the distinction between the republicans and the bosheviks for the 30 or 40% of the population that pays attention to politics for about 15 mintues every four years.

    Until we hold our own party accountable, we’re wasting time lashing out against the left. Were it not for the rot in our own party, Obama – and by extension, the court – would have had no shot with such unconstitutional legislation.

    Obamacare. Behold the Bush legacy! Like it or not, obamacare is now a big part of GWB’s legacy. We asked for a big government republican, and now we’re reaping the benefit of him. In spades.

  • mkghayes

    and why, no, the mandate is not constitutional (if he’d just been honest about it instead of selling us all down the river to protect the court’s reputation or something).

    Here are some quotes from the dissenting opinion?. not a lawyer but the way I understand this is that basically the mandate is unconstitutional as the law was written. Congress wrote the mandate as a penalty, not a tax. Yes, congress may technically have the power to tax this way, but that’s not the way the law was written and it is not up to the court to rewrite the law to allow them to do it. It is within the power of elected representatives to tax, not the Supreme Court. Anyways… the people who are infinitely smarter than me spell it out below…

    From pgs 143-144:

    “The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.”

    ???[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .? or judicially rewriting it.??”

    “In this case, there is simply no way? to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.”

    “Our cases establish a clear line between a tax and a penalty: ??[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.??

    “In a few cases, this Court has held that a ?tax? imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held?never?that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress? taxing power?even when the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty.”

    From pg 150

    “?to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, ?7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.”

    • acat

      is about as useful as reading the phone book.

      Now, if you can show where the Roberts majority opinion is in error based on both that opinion and the bill itself, we can talk.

      Mew

      • tnfriendofcoal101368

        As I said about Scalia dissents on Arizona, dissents don’t matter. No law is changed because of them.

        This should fire up conservatives to vote and get out the vote. No matter if you think your Senator or Congressman is the biggest RINO squish in Washington; not one RINO squish voted for Obama Care. Not one RINO squish voted to force you to buy health insurance. Vote the Senators and Congressman who will send a repeal to the President and then vote for the man who will sign that repeal (and I assure you, King Barack will veto any attempt to repeal). If you sit this one out or give less than 100% effort because you don’t like Romney or wanted a different VP or your Senator voted for a bill you disagreed with, in the next four years, you will get immigration by fiat, national security Vladimir Putin would approve of, taxes for buying SUV’s and taxes for not “upgrading” your homes to renewable energy and you won’t have Chief Justice Roberts to blame – it will be the fault of the man or woman in the mirror. I won’t have the ruination of the country on my conscience.

        Stay angry my friends and then use that anger to run as many Democrats out of Washington as possible. Then on November 7th, we won’t be angry…the King will be.

        • mkghayes

          Unfortunately even though in my opinion Roberts is wrong, there’s really not much we can do about it… except go vote in November. That’s the obvious next step. And you’re of course right, no law is changed by the dissent so in that sense they don’t matter… but I do think it’s helpful sometimes to look at things to try to understand what happened.

          Months ago, as we all know, a judge in a lower court ruled that the entire law should be struck down… his opinion was painted as the more “radical” conservative view. So Kennedy, the moderate on the court, today says that he would have struck down the entire thing… the moderate doing the same thing the “ultra” conservative did, and one of the conservatives on the court votes to uphold a mandate we all thought surely would be found unconstitutional. I don’t know… to me in that sense that might warrant looking at the dissent ? again, just to see what the heck happened.

      • trimulchio

        law goes in the end. Think of the two Jehovah’s witnesses case WRT the Pledge.

      • mkghayes

        I happen to have another one because to me it was “useful” to point out the opinion of the dissenting justices to try to possibly help some of us understand what was behind the whole thing… it was very puzzling to me why the “moderate” Kennedy got it and Roberts (the supposed conservative) didn’t. The obvious most useful thing for us all to do now is go vote out Obama in November…. since we’re so into being useful and all.

        As I said I’m not a lawyer so I’m not going to begin to get into the second sentence of your post… I’m sure you’d probably run circles around me anyway. And from everything you’ve been saying on the other threads it would be a pointless exercise anyhow so… thank you and good day.

        • mkghayes

          the above was directed at Acat.

          • acat

            Trying to understand the court by reading the minority opinion is useful in predicting future decisions.

            Unlike the dissent in AZ SB 1070, which contained a blueprint for how to stay on the right side of the next round of legal challenges to anti-illegal-immigration legislation (i.e. how to not be a racist) I don’t see where the minority opinions here are useful.

            Mw

    • mkghayes

      Everyone is of course entitled to their own opinion, but after hearing Mark Levin last night and reading more analysis on the case today, the notion that a dissent should be generally ignored or not be cited seems pretty silly. Seems like before we throw out the baby with the bathwater we could ask a simple question… is there any truth to anything that was said? More importantly is there anything that can be learned from it or done about it? Just because the justices in the minority opinon “lost” doesn’t make everything they say untrue or somehow invalid. Especially since in this case people are coming to the same conclusions as the dissenting justices. The subtitle in this article at the National Review acknowledges the point the dissenting justices made ? that the law was rewritten. Do we really want Supreme Court justices rewriting laws to suit their purposes? I mean of course there’s not a lot we can do about Roberts himself, but we can do our best to see that no more justices are confirmed that would do this ? and the fact that this is being done is something we should all be aware of.

      No it doesn’t change anything, but it does give us insight into the character of the chief justice and what to expect from him in the future. Up until now John Roberts has come across as a conservative judge we could reasonably trust to rule honestly based on the constitution. But now we have no idea what to expect.

      Plus it seems pretty dangerous not to consider ? especially in a case where liberals win ? what the dissenting justices objected to. What were the liberal justices trying to pull? Even though there’s not a lot we can do at that point, I think it’s pretty crazy to not at least try to understand what justices are up to. Whether the dissenting justices are liberal or conservative, there’s always something that can be learned from the minority opinion.

  • ctredstater

    About CJ Roberts. Turns out Kennedy had the stomach to do the right thing – the Constitutional thing. to uphold the rule of law. Roberts weasely technical “solution” to the problem of having such a major case in front of him will go down as one of the most disgraceful, pusillanimous moments in American judicial history.

    he “cut a deal” – in which the leftist jurists got to go on record that the commerce clause was sufficient – the four Constitutionalists said the whole thing should be thrown out – and Roberts was out there on his own – telling the electorate too bad you were deceived and telling Obama and the Democrat party that they can say anything, lie about anything, to get something passed and pay no price for it.

    Roberts told the electorate “live with it – and don’t depend on me to pull your fat out of the fire.” Well that is fine, but what about Obama and the Democrat party – who swore up and down it was not a “tax” – but a penalty. So now, we have as a matter of principal – that the government may pass a law which requires people, as a requirement of citizenry – to buy a product from private industry that the government will specify – in terms of features and ultimately price. or else to have your property confiscated – ultimately at the point of a gun. to user the coercive power of the federal government to force citizens to buy something deemed in the national interest.

    what a concept. there is absolutely nothing unique about the healthcare industry – in terms of it being a “requirement” – i.e. everyone is in the market anyway at some point so, in order to achieve this utopian ideal, we will force everyone to be in the market all the time – pay the prices we demand – and allow us to control costs through government- mandated bureaucrats – “death panels”.

    The motivation for Roberts was to let the world know that he will not act as a break on bad legislature. but what is a Supreme Court for, if not to declare invalid that which is un-Constitutional? The notion he advanced, that it is the Court’s duty to “preserve as much of the law as possible” is absurd. Was that followed in Brown v. Board of Education? in any of the real landmark cases? give me a break.

    Now the burden shifts to Governor Romney – and the electoral efforts of all conservatives and Republicans around the country. To blow out Obama and the left. To hold their feet to the fire. To hammer them with every nook and cranny of this brutal, un-American monstrosity of a law. To make the overturn of this something that happens on Inauguration Day.

    In the end, Roberts may have, as Erik wrote, handed Romney the White House. God help us if he didn’t.

    • acat

      Clearly, you’re suffering from telepathy as you’re mind-reading Roberts….

      Mew

      • tnguy

        n/t…….

    • califgal

      collegiality is important on the court. Can you imagine how it must feel right now to be Alito, Thomas, Kennedy, and Scalia? What are you even there for? To what good end when your own submarines you, looking for any damn out he can find.

  • Change Jar Conservative

    This is the part that I don’t understand in Roberts being able to make this ruling.

    If this is a tax then how can there be any standing before the Supreme Court?

    So if it’s a tax shouldn’t that have stopped the process right now and been a dismissal?

    • trimulchio

      a tax can’t be challenged until levied.

    • Common_Cents

      Roberts is a coward.

    • windwaker24

      His opinion makes no sense. It’s not tax in the beginning, then later it magically becomes a tax. He needs to answer this discrepancy. Someone in Congress needs to interrupt his Summer in Europe…

  • Finrod

    I’m calling this ruling the Dred Scott of the 21st century.

  • jonrd364

    So many OblablaCare threads running, it’s hard to pick one for this question, and this one is as good as any. I’ve yet to see any mention of the first amendment fight against the birth control issue with Christian-based businesses and organizations. Is that fight essentially over?

  • http://www.rightproadvisors.com erinmist

    I understand the arguments. I hear what everone is saying. But today, our Supreme Court ruled that anything and everything can be regulated, and if we don’t like it, vote differently in the next election. Unfortunately, that is not how it will be perceived in the halls of power. They now have a blank check to do anything under the commerce clause and general welfaire clause…two clauses of our beloved Constitution that have been stretched, distorted, and mangeled beyond any fathamable recognition.

    States are now on the hook for billions, if not trillions of dollars. Some of these states (I’m looking at you, Texas…the last bastion of freedom on earth) will rebel. They cannot afford this. Their citizens will vote likewise.

    We are now two nations, just as we were in 1861. Only this time, the good guys are outside the government. Several states will not, and cannot, abide by this ruling. It is fiscal ruination for them if they do.

    And if this government thinks, for a minute, that I will purchase a contract with a private, for-profit company that has spent millions of dollars in lobbying (wronglly…you will NOT get the healthy uninsured to pay for the sickly insured…we will all buy health insurance when and only when we are sick!), they are about to meet the force of 500 million firearms unless this is repealed.

    This is our generation. This is a hill worth dying on…literally. I defy the Army to shoot me, my wife, and my children because I refuse to comply with this law.

    This election just became the nexus of all that we are…we either choose liberty, or we choose slavery. Regardless, I don’t see a happy outcome…50% of this county — from immigration to healthcare — wants nothing to do with the other 50%. Please…go off and be France. We will go off and be Texas. Let’s see whose economy booms.

    But this…this law…this constitutional law, is a brdge too far. You have screwed the pooch and you will feel our wrath in November. But should you not, you will then feel something more painful than a lost election. You will finally taste Mr. Jefferson’s open rebellion.

    • avgjo

      Don’t worry about fighting or dividing politically. We have to focus on taking back institutions. The best way to destroy a political opponent is to completely discredit and then marginalize away into nothing their ideas. Most tenets of modern liberalism are things that get you run out of town on a rail for saying. But thanks to our having lost control of institutions like media and education, we face the very real prospect of it being illegal for us to voice our views at some point in the near future. Do you have a degree? Go back and get your doctorate. While working on it, make friends with some aggressive conservative lawyers. When you get your doctorate, become a professor. If some lib tries to discriminate against you teaching because of your politics, sue the living crap out of them.. Wanna do something more aggressive? Become one of those lawyers and offer to file suits on behalf of friends and family. Tech savvy? Get into the New Media. Are you a successful businessman? Get together with likeminded businessmen and pool money for fun – things like filing suits, buying ads, donating to real candidates.

      Be smart. You can accomplish far, far more good for America and your posterity and you can do far, far more damage to the forces of evil in this country if you keep your head and focus your efforts.

      • littlehouse18

        At least that’s the legal advice my conservative professor friend got after his department chair demanded he tell his political views and then summarily terminated his contract.

        • avgjo

          Find a lawyer with cojones. Get a copy of Alinsky and use it. Call conservatives in districts where the voters’ kids go to that school and get them to raise heck.

          The problem with our side is we just roll over and accept nonsense like this instead of forcing it to accord to our will.

  • avgjo

    spot-on:

    Roberts knows, from decades around conservatives, that we are no threat to the judiciary; not to put too fine a point on it, we?re like black voters with the Democrat Party. We?ll keep taking the abuse and coming back for more.

    You won’t see any substantive criticism of Roberts from prominent members of the ‘conservative’ media.

    You’ll hear all kinds of confusing arguments about how Roberts really did the country a favor by extending the nature of congress’s taxation power.

    You never heard of a prominent conservative calling for Boehner’s resignation as Speaker or his primary challenge when he messed us over on the budget.

    I could go on, but we all know the song and dance, gut-level. What hope is there that we will hold Mitt’s or anyone’s feet to the fire? They don’t fear us, and they have absolutely no reason to.

    There are fundamental flaws in the integrity of the conservative structure in this country. If the structure is not radically overhauled, it will fail.

  • trimulchio

    mandate is a legitimate exercise of Federal power under the Commerce Clause is dead. On the other, it has been upheld as a tax.

    Could be “too clever for his own good by half.”

    • acat

      I’ve seen lots of Republicans get elected by pointing out Dems’ votes for tax increases.

      Thune’s takedown of then-Senate Majority Leader Daschle comes to mind…

      Mew

      • boballab

        and will again in the future to get around that problem.

  • gekster

    I heard it on Rush, but waited for the transcropts to come out.

    from:
    http://www.rushlimbaugh.com/daily/2012/06/28/the_court_rules_obamacare_is_the_largest_tax_increase_in_the_history_of_the_world

    excerpt:
    The chief justice of the United States Supreme Court, John Roberts, said, “It is not our job to protect the people from the consequences of their political choices.”

    Now think about that for a minute.
    This is so true.
    It is not thier job to correct our poitical choices, or mischoices.

    So all of you who sat out 2008 to teach the Republicans a lesson for picking McCain, it looks like the lesson is for you.
    And those who don’t want to vote Romney because of some inherent dislike, that is your political choice, and the court isn’t going to be there to make the booboo feel better.

    Just don’t make the same mistake this time around.

    • avgjo

      There is nothing in the constitution that grants the Federal Gov’t the right to use taxation to compel transactions between private parties. That’s what Roberts affirmed today.

      I don’t know why he did this. did they have dirt on him? was he worried about his social status in D.C.? Did he have a brain freeze? I don’t know.

      • gekster

        If you don’t want to admit it, that’s fine.

        It boils down to ‘elections have consequences’.
        Instead of lamenting over Roberts, this should strengthen our resolve to solve the problem at the ballot box.

        • avgjo

          But I particularly detest it when people use true statements as cover for bad decisions.

          • gekster

            and opinions will not get the law recalled.

            One thing about looking back when trying to go forward.
            you can trip alot.

            At this point in time is to do whatever we can to get the people into the WH, Senate, and House to repeal that law.

            I won’t spend time crying over spillt milk.
            It is already spillt and needs to be cleaned up.
            I’ll find people with a couple of mops.

          • avgjo

            I like you and I appreciate you keeping the disagreement civil, and i hope i did my part to do the same.

            I will just close with this from my side:

            It’s one thing to cry over spilled milk (which you shouldn’t).

            It’s another thing to analyze past mistakes. Roberts was appointed by a squishy Republican. Many on our side think that we can work with squishiness. Today, squishiness blew up in our face. I think we need to let the lesson of today sink in, deep. Perhaps it will foster a healthy intolerance for squishiness down the road.

            I’ll take one of those mops, but I’m out to find the source of the spill.

          • Dr. Botkin

            there is a “down the road.” I’m afraid we are already at the end of the road. With this bunch, there are no assurances.

          • gekster

            It’s just that I see whailing and gnashing of the teeth going on now, when in 24 hours, after chewing and digesting this a little, some more rational thought and maybe adventageous insite might privail.

            And I got some mops overhere if ya need one. ;)

    • runner12

      Apparantly, many are pointing out that in the minority dissent, they argued against the majority opinion as if the majority held the dissenting opinionm. They even referred to thr majority opinion as the “dissenting” opinion.

      This has led to speculation that Roberts was initially on the side to strike down the mandate, but then caved to political pressure. I pray this was not the case and is just speculation.

      If it is true, then the Court has just subjugated itself to the whims of the Left and the MSM, all by the hand of Chief Justice Roberts. Truly a new low for the SCOTUS.

      • http://www.hakubi.us/ Neil Stevens

        Not that theory again.

        On the commerce clause matter, Scalia *was* writing with the majority.

        • runner12

          It would make today’s ruling less painful than it is. I will re-read the DC story and see if that is what they were referring to. Thanks for the tip.

        • runner12

          the minority dissenting opinion. If Ginsburg dissented on the issue of the individual mandate being Constitutional under the Commerce Clause ( which I think she did ), then the DC misquoted the opinion and you are correct.

          The passages in which the minority uses the word “dissent” are referring to Ginsburg’s opinion re: the Commerce Clause.

          • runner12

            That being said, several reputable news sites continue to report this theory and on more than what was quoted in the Daily Caller. It is interesting as legal scholars are split on it.

            It is an interesting possibility, but it is too early to accept its probability or dismiss it entirely. Maybe in the coming days we will know more.

    • windwaker24

      to protect the Constitution from idiots who seek to undermine it. Let’s say for argument sake, Dems rule both House and Senate and Obama proposes everyone has to take in an illegal immigrant whether they like it or not. The Dems pass it in both chambers and he signs it. It’s now law. The Constitution clearly forbids forced quartering, but based on the Chief Redcoat’s words, it’s not his problem when in fact it is. When the other 2 branches go berserk, it’s the job of the judiciary to reign them back in. He doesn’t get paid $220,000 of our money to sit around and whine at us about how the people messed up. The Founders created his office for a reason, not just to sit around looking pretty!

      • gekster

        and no matter what we say or think about Roberts, it is still what it is.
        I’m just looking at what we can do to take advantage of a bad situation.
        Clouds, silver lining type thing.
        And no matter what I may think or say about Roberts, it won’t change the fact the window got broken, so to say.
        I’ll concentrate on what to do to fix it.

        • windwaker24

          I don’t take affronts to the Constituion lightly. After seeing what Founders went through to give us a Constitution and a country, it makes me foaming-at-the mouth angry when someone abuses it. Roberts needs to be hammered everytime his name comes up. Romney would have score major points with me if he not only had a plan for repealing Obamacare, but also had a plan for Judicial Reform (and no, new amendments to the Constitution are not required. The Constitution already establishes itself as the Supreme law of the land. Make them abide by it, legislatively.) ‘cuz clearly they have gotten out of hand and it needs to stop before they destroy this country.

          • gekster

            I am with you all the way, but what will lamenting get us.
            I can’t change what has happened, but I can work to change the future. Just saying that’s where I am right now.

            And for the first time I finally foung all the hearts in windwaker, after five years or so.(I don’t use cheats like my grandkids do)

          • windwaker24

            is the spinning that’s going on on the right, trying to make what Roberts did some sort of victory. He rewrote the healthcare law from the bench! We should not be applauding that. I’m against it when Democrats do it and I’m against it when Republicans do it. There is no gray area when it comes to upholding and defending the Constitution. The Constitution is not hard to read. Plus, the Founders left ample commentary for us to follow to fully explain their intent.

            Now Gov. Perry had the right idea on Judicial Reform, but he was wrong on some points. He proposed term limits. Term limits will not fix this problem. How long one sits on a court is not the problem, it’s what they do with the time that they are there which is the problem. Scalia and Thomas have earned the right to sit there as long as they want because they uphold the Constitution through thick and thin. Proper reform has to address how judges develop opinions. I say limit them to primary source documents and don’t let them go beyond that.

          • gekster

            But we must play the hand we are delt.
            And our only recourse and way out is to have an effect in November.
            I posted earlier that I have had many people, friends and some I don’t even know call me about thier local Tea Parties.
            The ruling has awakened the masses, and I will do what I can.
            Our only hope is in November, and it appears that others see that also.
            Stay mad, and channel that anger into what we can do to change the status quo.

          • windwaker24

            I’ll stay angry until this precedent is gone. Like with Wickard, my anger will not rest until the Constitution is fully restored to its original meaning, every single word of it!

          • gekster

            Been married for 42 years, I know the consequences. lol

          • windwaker24

            And the funny part is, I’m actually a very soft-spoken, shy girl. The Constitution and the Founders get me fired up! It has been this way ever since I was 8. Anyone who abuses the Constitution and I hear about it, has a problem with me, whether they are Democrats, Republicans or Independents!

          • JSobieski

            The legal precedent on “substance over form” (i.e. what “labels” politicians put on a provision don’t really matter) and the legal predent on taxes and spending (cases that support the validity of Medicare and SS), are unfortunate in this instance but they do exist.

            I disagree with Roberts, but the gist of his opinion is the following:

            The tax code is filled with things that if you do, they lower your taxes (deductions, credits, etc), and if you don’t—your taxes are higher.

            This is not some kind of insane deviation from Constitutional analysis, even though I do disagree with its application in this case.

          • checkmate2012

            I was literally crying my eyes out today for the same reasons you state. We are done mostly unless Romney wins but yet it won’t change the reach of big gov. This massive overreach of power and now with Robert’s twisted response furthers our demise. So even Romney can’t change precedent; no one can.

            I’m depressed but will disagee on one point; Romney can’t do judicial reform, except nominate new justices as they retire. Let’s not talk about judicial activism as that is exactly what Robert’s did, in the reverse if you will.

            I’m afraid this will take years and even if Romney wins, he can’t turn this economy completely around let alone fix our justice system :(

          • windwaker24

            but it’s going to take guts! Judicial reform can be done legislatively, no new amendments to the Constitution are required, which is where I thought Perry got it wrong. The Constitution already sets itself up as the Supreme law of the land. Make them abide by it! If they need guidance, they are to use the primary source documents the Founders left for us. Nothing more! With each opinion, they should be required to clearly show the Founders’ intent and be able to back it up using the primary sources only. If they don’t or can’t, the opinion is invalid. I’ve had enough of this run amok branch!

      • tnfriendofcoal101368

        And use that anger, to get out the vote and then vote Obama, Pelosi and their cabal out into the streets. Stay angry, vote, send some U-Hauls to the White House with “Chicago or Bust” stickers on the back.

        • gekster

          but rather direct that anger, as you are saying.
          I don’t know if you remember ‘Mad Magazine’ but they had a caracture called Alfred U Newman.
          His motto, ‘What, Me Worry’.
          I decided back then to not worry about something until it happens, and after it happens it ain’t no sense in worrying about it anymore.
          It has happened.
          Now is the time to do something about what we don’t like, and that is to do what you say.

        • windwaker24

          But Roberts, to me, deserves the most contempt. Obama and the gang don’t even pretend to like the Founders. To them, they are nothing but old racists who should be ignored. Roberts is different. He spouts off Founders’ intent and defending the Constitution, but when it’s time for him to stand up for them, he cuts and run. It’s a sad day when Justice Kennedy upholds the Constitution and is cutting dirty looks at the supposedly “Conservative” Justice.

  • lineholder

    Will you please explain in layman’s terms what the outcomes or consequences are likely to be if a person doesn’t pay their “health mandate tax”?

    Fines? Jail? Garnished wages? Liens on personal property?

    If the latter in particular is true…how incredibly ironic! The left has made a point of saying that it is because of the policies of eeeevvvviiiillll insurance companies that citizens end up losing their homes when they get sick….and now, it might be more of a case that a person could lose their homes even when they are NOT sick???? And it would be at the hand of the US government???

    Sounds like a good rallying cry to vote for Romney 2012!

  • marktx

    In the strange world of Beltway politics, John Roberts sided with activist liberals on not one, but two decisions this past week. First the immigration decision – and now Obamacare.

    With respect to the ObamaCare decision, Roberts seemed to agree with Alito, Scalia, Kennedy, and Thomas in that the commerce clause does not authorize the federal government to force citizens to purchase health insurance. Yet, in a strange twist, Roberts brought in an issue that not even the government was arguing in the case, ie, the taxing authority. As a result, Roberts has opened up a whole can of worms that will give future government regulators more freedom to pursue their big government objectives.

    What this decision and others show is that Roberts clearly is NOT an originalist who believes in a strict interpretation of the constitution. Unfortunately his resume on the bench was very short before being nominated – all the more reason for Mitt Romney, if elected, to choose judges that have long papers trails that show a clear record of originalist legal philosophy.

    • http://www.hakubi.us/ Neil Stevens

      Lower court judges have to follow precedent.

      • marktx

        ….as Scalia, Alito, and many others had long paper trails that showed their judicial philosophies long before being nominated. For every stealth nominee that turns out the way intended, ie, Clarence Thomas, there are twice as many that turn out less than ideal,ie, Souter, Roberts, SDO, etc…

    • runner12

      One could argue that in a way, he rewrote the legislation from the bench by bringing in the weak tax argument. That could be judicial activism.

      But overall, I think his unwillingness to stand up for the Constitution and get involved hurt us. I think he is more of a non- judicial activist more than a strict Constitutionalist, which is why we got the ruling we did today. J Christian Adams has an interesting take on this over at PJ Media, I believe. You should check it out.

  • aesthete

    I totally agree with you.

    The thought process behind the decision, moreso than even the outcome itself, has radically expanded the level of un-Constitutional control that the federal government can claim over our lives.

    I suppose we should have expected this from a man who declared McCain-Feingold Constitutional.

  • Viet71

    The taxing power is one of the enumerated powers. The “mandate”, called a “penalty” in the ACA, is to be collected by the IRS; it has almost all the hallmarks of a tax (lacking in enforcement provisions).

    Roberts was correct in this: If an act of congress can be sustained or can be struck down, and if it can be sustained under the Constitution, then it should be sustained. That’s bedrock Constitutional law.

    Conservatives should take comfort in Roberts’ opinion. It is conservative legally, and it is solid.

    By the way, there are numerous instances in the tax law in which an income earner pays more tax for inaction. Examples: Failure to make charitable contributions; failure to purchase “section 179″ property; failure to make home mortgage interest payments.

    • califgal

      deductions. The mortgage interest payments are deductions. You don’t pay a penalty or a fee specifically because you didn’t buy a house. (And everyone’s deduction for the charitable contributions and mortagage interest payments differ. In addition, even if you have a mortgage deduction as I do, it has reached the point that it’s so low that I have to take a standard deduction. That is, I derive no deduction for my interest payments.)

      • JSobieski

        Deductions can be characterized as offsets to generally applicable tax increases.

        • Thomas Crown

          Whatever one calls it, this is not characterized nor created as a tax with a 100% credit for undertaking an action, it is a tax that only exists if you don’t take the action first. The difference is not semantic.

          • tnfriendofcoal101368

            When it goes into affect, everyone will be assessed the tax set at 2.5% of income (or whatever)…then there will be a question “Do you have health insurance” or better yet a new 1090-M will be created for medical insurance from your insurance company. If you can provide the number on your 1090-M, you’ll get a Medical Insurance Deduction. Works like the “Energy Efficiency Upgrade Deduction” you get for having energy efficient windows…of course it would increase the insurance company overhead and increase cost but hidden taxes don’t much worry Barry O and the liberal cabal. The King will follow the same playbook he used with contraception…grant authority to a branch of the executive (in this case the IRS, on contraception Health and Human Services) and then use the agencies regulatory power to be the tip of the spear.

          • Thomas Crown

            I’m just unsure of the constitutional logic.

          • tnfriendofcoal101368

            but I think Roberts gave them cover…he said it was constitutional as a tax, they treat it like a tax, Roberts won’t allow an overturn for that.

          • JSobieski

            I don’t disagree with you in terms of the outcome, but you have to admit that constitutional validity cases tend not be decided based on form over substance. Courts recharacterize what statutes say, and tend to focus on what statutes do.

            Put another way, does the Contitution differentiate between a law in which:

            (1) I am charged an additional $X of income taxes if I don’t have something

            (2) Everyone’s taxes are increased by $X, and those who have insurance receive a credit/deduction/offset of $X

            In the real world, the impacts and actions are the same. The person without insurance files a 1040, and pays more in taxes.

            The Roberts opinion specifically mentioned that people who do not file 1040s are not liable for the penalty. This does make the penalty look more like just another part of your income tax filing.

            I think Roberts is wrong, but I think people of good faith can disagree as to exactly where the line should be drawn in terms of courts looking to substance over form (what Roberts refers to as “labels”).

            If I was litigating a business dispute, the fact that the two parties said that they were “partnering” with each other does NOT mean that they entered into a partnership.

          • JSobieski

            Spend $100 in 2011.
            Spend $105 in 2012 even though the budget was slated for a 10% increase.

            Using those facts, I could characterize what actually happened and their impacts as follows:

            Spending went up by $5
            Spending went up by 5%
            Spending was cut by 4.5%

            These are different “labels” (the word Roberts used in his opinion) for the same set of actions and impacts (the first two sentences).

            We have a swiss cheese income tax system that invites abuse by the federal government because money is a commodity and there are all sorts of taxes with offsetting credits/deductions.

          • Thomas Crown

            And I’ve used it in more than one summary judgment motion.

            But then this can’t be a capitation or the equivalent, which means it’s not clear which part of the taxing authority from which this comes. The labels count for constitutional analysis.

            Heck, I need to finish researching the cases. I’m sure I’ll get that done the day after never.

          • JSobieski

            For example, if the tax code gives a fixed fee tax credit for each dependent, how is that different than a tax credit for having insurance?

            I am no tax lawyer, but couldn’t Congress just increase each tax calculation in the tax tables by $X and then have an offsetting credit or deduction of $X for those with health insurance?

          • Thomas Crown

            But if you read the opinion, it’s clear that this isn’t structured as an income tax, a fact which even the court concedes. There’s a lot of dodging about what kind of tax it is.

            Surely Congress could have made this a part of the income tax code. Easy-peasy, done. They didn’t. They dared not. That’s part of why there’s no clear delineation of the type of tax.

          • JSobieski

            It allows the federal government to launder constitutional justification by lumping it to a 1040 form and payment to the IRS. Isn’t the penalty just a shift up in the tax tables? t al

          • Tbone

            It is a fine for not buying a particular product. The fact that the tax collecting mechanism is employed to collect the fine is immaterial.

            I think every house should have a new Bible every year. If you don’t attache a receipt for a new Bible to your tax return, you have to pay $50.00 more. Is the $50 a tax just because it can be included in the net tax due amount? I don’t think a rational person, unencumbered by a law degree, would be willing to contend that.

          • acat

            The legal was always a sideshow. (no offense)

            As with the Kelo decision, the political backlash ought, for a time, to act as a bulwark against abuses… and hopefully it will give us enough time to build up some decent laws against this sort of tax, as many States and munis have passed decent laws against excessive takings following Kelo.

            Mew

          • Tbone

            But, that doesn’t excuse the sophistry of Roberts.

          • d_lamar

            I agree that no rational thinking person would ever consider the mandate a tax. It is clearly punitive.

            However, the Supreme Court irrationally has now held the mandate to be a tax. So we don’t have to worry about whether it’s rational.

            I like your example of mandating the purchase of a Bible. Likewise, the congress could mandate the purchase of a firearm each each for each household, and pay a substantial tax if one doesn’t buy one.

            I understand that revenue raising bills are not subject to the fillibuster rules in the Senate. If that is the case, could Obamatax be repealed by a simple majority in the US Senate?

          • garfieldjl

            Considering the purpose of this “tax” is not to generate revenue, it is to force people to buy a particular product, if everyone complied it would generate 0 revenue.

            So it would be unconstitutional even as a tax.

  • evilbloggerlady
  • WillWong

    John Roberts made the same mistake GWB made! GWB’s respect for the office of the POTUS rendered him unwilling to get into a catfight with liberals out to distort and detroy his legacy so much so that he left office at sub 30% ratings and allowed the Dems to capture both houses in 2006. His failure to forcefully confront lies somehow allowed those lies to become “truths”. Likewise, Robert’s preoccupation with not tarnishing his court with being branded as a partisan court let him to side with Obama. Both men should realized by now that in dealing with Chicago gangsterism, decency seldom works!

  • poorwilber

    ….and one that I cringe at the precedent….leading to the next horror to be inflicted by the ruling elite on citizens.

    The power of Government grows larger, and the individual weaker.

    • jamesm

      of conservative beliefs. (Smaller government)

  • cactusjack

    Here where I am in the pit of despair today, at least one can see some things more clearly, to wit:
    1. No Erick, there is no way to dress this up, Justice Roberts did incalculable harm to our cause today, whatever clever thoughts he thought he was cleverly thinking in his mind. Or not.
    2. And in your career trajectory to which I wish you well, yet you had better learn – Harvard Law will let you down every time – when it really matters.
    3. Speaking of which, I wonder how Harriet Miers would have voted on this?
    4. A lot of convervatives who have been carping about him – and still are – had better learn to love Mitt Romney PDQ. He is our only hope now. SCOTUS is complicit, and the Legislative Branch is no sure hope at all. It’sall down to getting Mitt into the WH. All of us here reading RS better figure that one out fast!
    5. Speaking of complicit – why does this whole thing feel like there’s been a fix in on it since – well, say about the time we lost the House and Roberts got confirmed? It just has an unsettling feel now, of a fix all the way.

  • Lords86

    As a fellow lawyer, I appreciate your reasoned analysis and opinions, which I think are very well stated.

    In the midst of my nausea today, I began wondering whether there was a hidden silver lining in this ruling, beyond the arguments posited by George Will and others relative to reigning in Congressional expansion of Commerce Clause arguments. I think that there are a couple, but one which seems particularly intriguing.

    By labeling this legislation as imposing a tax, which by definition means that it is designed as revenue produce legislation versus a penalty which is conditionally limited to individual conduct, Roberts may have done us the favor of permitting a prospective, but not cloture-proof, Republican Senate to use the budget reconciliation process to repeal the legislation.

    As a tax, legislative action to expand, modify and/or repeal it would all clearly fall within the Byrd Rules, which have generally governed use of this process in an effort to limit this cloture-avoidance process. There is no cloture vote under Senate Budget Reconciliation, which means that a repeal could arguably proceed within budget reconciliation without the need for a 60 seat Republican Senate majority.

    This would have been a much more difficult argument to make, regarding applicability of budget reconciliation processes, if the sanction were viewed merely as a penalty, which by definition is not adopted in contemplation of budget revenue generation (as is the case with a tax – the tax which Roberts so inartfully crafted in his opinion.)

    • califgal

      but as Mark Levin said in assailing George Will’s limp-wristed defense of what he sees as some kind of Roberts’ genius, the man didn’t have to do anything except vote to overturn the damn thing. Period.

      Somehow it seems he wants to please the elites. Hell, maybe he’s having an affair with a hot babe who said, “It’s my way or else.”

    • rightlane1111

      The Congress makes the laws…right. OK…they are the legislative branch of the government. So, If the Congress passed a bill (or law when Obama signs it) that calls Obamacare a mandate. How can a Supreme Court Justice “change” the original intent of the bill, a mandate wherein all must contribute to allow everyone insurance and bring down costs to a tax. The Judicial Branch does not make law. They are supposed to interpret the Constitution. So, how does one man change the complete intent of Obamacare as presented and voted on by Congress?

      The above paragraph almost seems as though it not only negates the bill from Congress…because someone was misrepresenting it…but also make the SCOTUS ruling invalid because they went outside the scope the their purview…interpreting the law as it pertains to the Constitution. If They (Congress) sell it as a mandate…how can they change it to a tax?

      • littlehouse18

        The only way to change this ruling and it’s precedent is to change the composition of the court in our favor, which is difficult, and to get it revisited, which is rare.

        Unless we make like the left and make up the rules as it suits us …

  • califgal

    The man makes the times or the times makes the man. Chief Justice Roberts let himself be molded by who knows what.

    Here’s hoping that the times we face will be so imposing that Romney will rise to meet them.

    • jamesm

      We will see….

  • Dave_A

    Roberts chickened out. Period.

    And I say ‘chickened out’ because unlike under FDR, there are not enough Democrats in Congress to pass a court-packing law…

    In FDR’s administration, a court-packing bill would have sailed right through… So the Supremes caved…

    In this case, the only reason to fear the Left’s court-packing schemes, would be if the Dems clean house in November…

    Of course, the possible ‘angle’ would be that the polling on PPACA indicate that Roberts believes ‘saving’ it would mean little since it’s unpopular enough to get repealed…

    What I don’t think, is that he actually believes the ‘I have to stretch every last inch to save a law, before I can strike it’ stuff…

  • http://www.timelyrenewed.com timelyrenewed

    We can not count on the Supreme Court to defend the Constitution. Even if Obamacare is repealed, that will still leave in place 75 years of Supreme Court decisions which have allowed the federal government to expand far beyond its original constitutional limits. We must now resort to the ultimate power the Framers left us – amendment. Only constitutional amendments restating and re-affirming those original limits will save our Republic. Of course, Congress will never initiate such amendments. Therefore, we must first reform the amendment process to enable the states to initiate and enact amendments without having to go through either Congress or the unworkable and dangerous mechanism of a convention. See http://www.timelyrenewed.com

    • iitywybad

      I have read and re-read the Constitution, and CAN NOT find the Article, Section, or Amendment that gives the Chief Justice the authority to re-write a bill in order to find it Constitutional. I agree with the 4 Justices who strongly dissent – the other 5 are nothing more than liberal elite political hacks.

      This ruling is invalid. It is time that the population wakes up and follows the advice of Mr. Newt. Congress is given the authority to establish the federal courts and if a Constitutional Amendment is need, then so be it. The founders did not intend for the people of the United States to be ruled by the court.

  • septembergurl

    God love you Thomas Crown, I love your contrarian approach, but you could not be more wrong.

    John Roberts just put a huge hurt on the regulatory state via his opinion on the Commerce clause. Awesome!

    Politically, this is a huge boon to Mitt Romney across the board –fundraising, organization, turnout — everything. Even Mitt Romney can’t screw this up!

    • Thomas Crown

      How is Roberts’s Commerce Clause argument binding? The majority did not join with him — they think you can do anything through the Commerce Clause — and the dissent did not either. They agreed with and echoed his argument — and expanded it and limited it — but as a matter of procedure they did not join it. How does his standalone opinion, which as a matter of law did not command any majority, signify a win?

      • wintermute

        .

  • UpLateAgain

    You can tax a sale. You can tax a purchase. You can tax either the acquisition of money, or the disposition of it. When you cause somebody to pay money to the government not as a percentage of a transaction amount, but because there has been no transaction (though one was legally required), that is by definition NOT a tax.

    It does not apply to people uniformly, to a class of people, or to a socio-economic group of people. It does not apply to a specific income level. It only applies to individuals who break the law, not by doing something prohibited, but by failing to comply with a legal requirement.

    We have the same kind of things in traffic laws. An example of doing something prohibited is speeding. An example of failure to comply with a requirement is failing to signal before changing lanes. Apparently, failing to comply with a legal requirement is no longer visited by a penalty, but instead now subjects folks to paying a tax.

    There is a legal requirement that people declare their income and pay taxes on it. If someone refuses to do so, we used to put them in jail or fine them or both…. by way of what we used to refer-to as a penalty for failure to comply with a requirement of law.

    Judge Roberts has apparently now instructed us that such people are no longer to be considered criminals. Instead of penalizing them for failure to pay their taxes…. we are going to tax them, as what used to be called a penalty is now a tax. Wesley Snipes will no doubt be gratified to hear he is not being penalized for tax evasion…. he is being taxed. He’s just being taxed by spending time in jail rather than paying money… since he refuses to pay money.

    Judge Roberts was correct in limiting the use of the Commerce Clause by the government to assert control over people not engaging in commerce. But his calling a clear penalty a tax ….. probably just to find a way to go along with Democrats so he wouldn’t have to listen to their griping following the decision if the mandate was shot down…… is nothing short of conducting an experiment in ‘spin’, a parsing of words to achieve a political purpose.

    A penalty isn’t a penalty, apparently, if you decide by fiat rather than function to call it a tax. And by that logic a putz isn’t a putz if you decide by fiat rather than function to call him a judge.

    • JSobieski

      and then have an offsetting deduction of the same amount for people who have insurance.

      The law is filled with examples of where the label associated with something is less important than the something.

      • JSobieski

        nt

    • Thomas Crown

      But it has to be a capitation, which is direct, and which is apportioned, and I have seen no evidence that it may be used to effect policy by existing only in the absence of a specific inaction.

      • UpLateAgain

        I’m more concerned with what doors have been opened at this point than what has already gone through them.

  • dudette

    is the best if not the most sober analysis of this mess. And what a mess it is. I do not know if anything but Divine Intervention will save this beloved country—a country my dad fought for at age 17 in the Phillippines, my uncle fought for laying communication lines at Omaha Beach, and my husband fought for in Vietnam…this disrespects the sacrifices our good men made and continue to make. They didnt fight so we could be serfs.

  • celador2

    The WSJ today has several articles on full speed ahead by hospitals, insurers all the institutions that were waiting for the court to decide if ACA was legal. Obamacare now has that legitimacy and credibility it lacked from the start among many health care providers.

    If anyone is serious about undoing the federal takeover of US health care delivery we must work on many levels. Many levels beyond a waiver or a repeal vote that goes no where after the House vote. I am not sure if what I see in DC is posturing or not. But concrete action is possible.

    Reid runs the Senate and repeal aint going no where.He may run it in 2013.

    What can Boehner do to defund is the tactical question I look to today. He can defund anything that comes up for appropriations and he knows it House is majoritarian.

    .

  • hayekwasright

    Nt

  • Mike Ferguson

    While he realized that he would be offending the right by deciding the way he did, which was basically to punt it back to the people, he knew that he would have a chance at redemption later, because being the more rational of the two sides we do allow for redemption. Though I believe he has permanently damaged his reputation and legacy far more than he realizes.

    I believe he made his decision because he realized that the left would CRUCIFY him for ever more and that they would never ever relent in their attack on his reputation or his rulings from now until his death or his retirement. That they would stop at nothing to irrevocably damage him. That is the only thing that gives any sense to his ruling.

    • ihateliberals

      Your logic of why is flawed in that now the conservatives will haunt him the rest of this life. he has no credibility left now. No matter what the decison is he makes in the further he will never be trusted again. I still go with my two opinions.

  • ihateliberals

    roberts in his attempt to call people to accountability for their political choices has unleashed a powere to congress that essentially wipes out “We the people” clause in the constitution. we can now be made to purchase a GM product or face a penalty just by calling the purchase price of the car a tax. Roberts must have been swayed somehow to have made such a bad decision that even a freshman in high school can see is wrong. If the deciding vote had been any of the other conservatives on the court It would be easier to swallow but with Roberts being the one smells of foul play or incredibly bad judgement.

  • trimulchio

    issue:

    http://online.wsj.com/article/SB10001424052702303649504577492842719751040.html

    The bill presents anolog ideas in a digital world.

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