The Roberts Opinion (Fred Thompson's commentary)

Fred Thompson's America ^ | July 3, 2012 | Fred Thompson

[philman_36]

...but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.
You might want to read the transcript of the oral arguments there, Fred.

Transcript...@Supreme Court: The Health Care Law And The Individual Mandate
It's got this little number in it...

GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to 39 on that proposition.

The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.

It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

Sounds to me like Congress knew it was a tax during debate.

[quimby]

Do you think the Justices actually read the 2700 page Bill? Nobody in Congress did.

No, but in defense of the court (ugh), their job was to decide based on the issues presented to them. Congress creeps have no such excuse.

[philman_36]

Well, there it is for all the Pollyannas around here.
Would you read my reply #21 and then explain to me how Mr. Fred can claim Congress can "deny it’s a tax during debate" after what the Solicitor General said in Court?

Doesn't it seem pretty clear from his comments that Congress, on both sides of the aisle, knew they were addressing a tax, no matter what it was called?

[philman_36]

Here's another article with things more closely laid out...

@It Was Always a Tax
In part...Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.

Snip...House Democrats likewise argued that Obamacare is constitutionally justified as an exercise of Congress’s power to levy taxes and spend money. Thus, Rep. George Miller of California said:

The bill contains an individual mandate to either obtain health insurance or pay a penalty. This provision is grounded in Congress’s taxing power but is also necessary and proper–indeed, a critical linchpin–to the overall effort to reform the health care market and bring associated costs under control throughout interstate commerce.

A really good article, IMO.
Be sure to read this...

The brief that administration lawyers filed on behalf of President Obama argued at length that the mandate is a tax. At risk of boring our readers, I am going to reproduce that entire section of the brief. You shouldn’t feel obliged to read it all, but it is actually quite interesting:
II. THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER
A. The Minimum Coverage Provision Operates As A Tax Law

Is Mr. Fred right that it wasn't covered in debate??

[RetSignman]

Chief Roberts just passed the buck for his cowardly decision right down to average American citizen. WE are to fault for not being intelligent enough to elect the right people to Congress.

Well, I have one question to ask the brilliant and stellar Chief Roberts, did you feel that way when Congress vetted and approved your power on the Supreme Court.

It was Congress, a Congress we elected who gave you your job but I have a feeling, at the time, you were pretty darn grateful that the voting public was intelligent enough to elect a Congress that met your lofty reputation.

You sir, are the walking, talking example of the Peter Principle.

[philman_36]

I rather liked this towards the end... Hey, that’s what you get for reading a web site that is written by lawyers. But even if you didn’t follow all of that, I am sure you got the point: the Obama administration argued vigorously, and at considerable length, that the Obamacare mandate is a tax. For Obama and his surrogates to deny now that Obamacare is a tax, or to express surprise that the Supreme Court has so held, is beyond disingenuous. Of course, such dishonesty is par for the course for the president and his minions.

[Eric in the Ozarks]

Oh, shut up, Fred.

[marsh2]

Justice Roberts actually echoed the same reasoning as a prior Justice Roberts in regarding the federal power to tax and spend for the “general welfare,” in U.S. v. Butler, 297 U.S. 1 (1936) regarding the Agricultural Adjustment Act. http://supreme.justia.com/cases/federal/us/297/1/

That Justice Roberts (for the Court) stated:

“The clause thought to authorize the legislation, the first, confers upon the Congress power ‘to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. ...’ It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The government concedes that the phrase ‘to provide for the general welfare’ qualifies the power ‘to lay and collect taxes.’ The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, ‘it is obvious that under color of the generality of the words, to ‘provide for the common defence and general welfare’, the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.’ The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare.”

In that case, as in the current case, the Constitution grants the power to lay taxes for the common defence and general welfare of the United States. However, this does not extend to the creation of a federal program that exceeds the limits of the enumerated powers and invades or compels an area reserved to state jurisdiction.

Looks to me that these principles were decided decades ago.

[Ann Archy]

OK fred.....is he being Blackmailed or Threatened because his two ADOPTED children were ILLEGALY ADOPTED. is he being Blackmailed because he is a Bi-SEXUAL or is he just a DUMBASS LIBERAL???? Which one, FRED????? There are NO other REASONS.....well except the MOST pathetic one.....he doesn;t want to read bad things about himself in the newspapers!!! SO WHICH ONE IS IT....FRED??? JOHNNY???

[goat granny]

Good old Fred is not a great judge of character. He sounds like his job was to see if Roberts was a nice guy, maybe he is but his judgement is horrid..

[x]

Sounds like he disagreed sharply with the ruling but just didn't want to attack Roberts personally.

That's an honorable stand and Thompson doesn't deserve abuse for not wanting to get personal.

BTW, thanks for the photo. Judging from the hair, Roberts may not be that gay after all.

[Flag_This]

"There is rampant speculation as to why Justice Roberts rendered the opinion he did."

[Christian4Bush]

bump for later

[Monorprise]

“
The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.

- Fred Thompson “

I’m afraid your mistaken mister Thompson, no matter what happens in November. Washington will no longer be restricted to respecting any of our rights.

There is no way we can ever hope to win every election from now on to eternity. Sooner or later anther Obama will lie and cheat his way back into power and without a Constitution to protect us we will be subject to his lawless whims.

[BuckeyeTexan]

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[ully2]

His opionion will live in infamy.