Skip to comments.The Roberts Opinion: It's Not All Bad
Posted on 06/29/2012 6:06:10 AM PDT by Servant of the Cross
John Roberts is not a traitor to his philosophy. He is not a liberal. He is, above all else, a very strict originalist, and the Chief Justice of a Court that is acutely aware and wary of its role in politics. Understand that his opinion, though certainly not ideal for the Right, contains more good news for conservatives in its pages than it does on its face.
So lets take a look at his surprising opinion the controlling opinion, as its called, which sets precedent and say[s] what the law is, as Marshall said so long ago.
The Good News
First: lets give credit where its due. Roberts made it abundantly clear that hes not a fan of the actual policy. Moreover, he shifted responsibility for this policy back to the American people, and revealed his respect for the separation of powers:
Unhappy with the ruling though you may be, the wisdom contained in that paragraph alone ought to cheer you. And I promise, theres more!
Now then. What hath he wrought?
Commerce Clause is everywhere in the news today, and if youll recall, that was considered the basis for both upholding and striking down the mandate. Roberts threw out the governments argument that it could regulate inactivity because of the substantial effect abstention from the market would have on the market as a whole. This, he said, was way too much power:
Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity. In so doing, he created a concrete definition of Federal power that will influence the way Congress makes law in the future, and the way the Court interprets future Commerce Clause cases. Heres the key passage to that effect:
Its hard to see at first glance why we should celebrate this ruling, especially because it was evidently not enough for Roberts to overturn the mandate. But what Roberts did here was establish a defining limit on the Commerce Clause, which had heretofore not really existed. Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market. Consider, also, the wide array of tools at Congress disposal under the Commerce Clause to ensure compliance. Roberts has ruled that Congress cant criminalize not buying something because of the effect abstention will have on the market. Indeed, that was at issue in this case; the fact that its unconstitutional is a win for liberty.
Furthermore, Roberts narrowed the definition of substantially effects to encompass activity that is already occurring, and curtailed Congress power to presuppose, and then regulate, activity.
Now, think back to the time when constitutional challenges to the mandate first began to surface: every legal scholar worth his salt, conservative or liberal, believed the Court would kill the activity/inactivity distinction. Yet that was the major victory the conservatives won in this case, and its now legal precedent. The mandate itself lives on, but Congress may never apply the full force of the U.S. government to compel anyone to make a purchase. This, the fight for the Commerce Clause, was the real war. And the right won it. Perhaps the fruit isnt ripe yet, but it will prove juicy in time.
So now, to turn to the legal reasoning for why the mandate remains law. In other words
The Bad News
Heres Roberts: And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.
You may keep your law, he says. But let me redefine it for you.
In the opinion, Roberts applies a test from an earlier case, Drexel Furniture, to determine whether the penalty meets all the requirements of a tax. Its another long excerpt, but worth reading, as hes very clear:
So heres how its going to work from now on: the mandate is now just the tax on not having healthcare, which Im sure will get a snappier name in the coming days, something akin to the gas tax, or the income tax, which most of us pay. Roberts says as much:
So after he invalidated the Commerce Clause justification, he determined that really, the penalty doesnt force participation in the market; hence, why he didnt throw out the mandate with the Commerce logic. Its not really forcing people into the market; after all, it didnt criminalize not owning insurance. It just puts a tax on it, and Roberts notes that taxes are often used to induce certain behavior:
Frankly, this doesnt look like an expansion of the taxing power. Perhaps hes articulating more clearly the intent behind so-called sin taxes, and other behaviorally-motivated taxes, but hes not handing Congress more power. Hes just explaining a power they already had, and use.
Rememberhe never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and its a bad one, and he doesnt like it, but that doesnt make it impermissible.
So, is this what the right really wanted to hear? Heck no! We like the dissent, where the whole thing goes. But Roberts is dumb like a fox, and its worth looking at the effects this ruling will have on the future, both near and far.
Over, and over, and over, President Obama assured us that this was not a tax. He was not raising taxes on the middle class (thats what the Republicans were doing, remember?). Nope, says the CJ: ya raised our taxes. Politically, thats going to prove troublesome for Obama this fall, and in a much more substantial way than having his signature legislative accomplishment overturned altogether.
For one, Roberts took away Obamas ability to campaign against the Court. They upheld his law; he cant do as he did after Citizens United and construe the ACA ruling as a massively political attack on the little guy and his uninsured plight. He has nothing to blame on the Justices. All they did was recharacterize the penalty as constitutional under the taxing power. Roberts robbed Obama of a scapegoat, and stuck Obama with an unpopular law in an election year. Ouch.
Second, Roberts has literally forced Obama to acknowledged that he broke a promise, and raised taxes. And tax increases dont resonate well with the voters. Now, its doubtful Obama will assume responsibility for raising taxes note that in his speech today, he didnt acknowledge the Courts reasoning for the ruling, only that they ruled in his favor. But the GOP has just added a major weapon to its arsenal: want to lower taxes? Then dont reelect Obama.
This third observation is one that isnt immediately eminent, but nonetheless just as important as those prior two, if not more so. Roberts has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. As noted above, Americans dont like taxes. And thanks to the fact that many will opt to pay the tax rather than buy insurance (as that will cost less), the insurance problem in this country hasnt been solved. The fact that weve settled the question of the mandates constitutionality means we can turn to the rest of the law, and address the flaws contained therein, and perhaps find a real solution to the healthcare crisis. As for future laws, Democrats lost the ability to hide behind penalty language. Roberts saw that the mandate waddled and quacked, and gave it the appropriate name. (He also forbade Congress from actually mandating anything, so that name isnt even correct anymore.) The ACA barely passed the first time; future iterations of this theory are destined to fail, because Congress will have to stand up and say, We propose to enact a new tax so as to influence your behavior. If that isnt the proverbial lead balloon, I dont know what is.
So there you have it: its really not all bad. Its not what we wanted, but then as I suspect Obama will learn in the coming months we must remember to be careful what we wish for.
Silver linings, inferred ponies in the pasture, lipstick on the pig, and now another round of hosannas from the Ben Dover Choir.
I agree that this ruling doesn’t mean instant death, but face it, sometime there is no silver lining.
The fact is that Congress has the power to tax income, and they can give a deduction for carrying health insurance.
So the ObamaTax is constitution. While the execution of the HHS Mandate and other issues are still open in the eyes of SCOTUS... the simple thing everyone needs to get is...
Romney +51 for Repeal.
If Obama is reelected, what SCOTUS rules is irrelevant.
Say what you will... Roberts is a Dick-Head... he is dead to us...
The problem is, the Roberts “precedent” will bind the liberals for about seven seconds. Less if they invest in high speed shredders.
This ruling combined with the AZ ruling tell us that once again a so-called conservative Chief Justice has turned to the left once he's secure in his lifetime sinecure! Damn him!
Townhall’s Kate Hick’s analysis on 0bamacare ruling ping.
If Obamacare was struck down, Obama would have used it as a rallying cry to his people, and might have given the election to him
Now, Romeny has the rallying cry and significant momentum, 3 months before the election
That is the best thing about the decisions (and ONLY thing keeping me sane this morning)
I hate it like poison, but OK we got it- so what do we do with it?
Like Roberts said- it is not his job to protect us from our political decisions- OK let’s go with that, and vote every one of these G@#%D@#$ mothe#$^%%#ing b@#$%rds out of office and send a message that wont be forgotten for another 100 years
PACK every town hall meeting
GET IN THEIR FACES (like the pResident told us to) at democrap AND GOP election meetings...
Get them whimpering in the corner so bad they will be afraid NOT TO repeal it
MAke 2010 landslide look like nothing...
Buy guns and ammo too- that would send quite a message
All good except for one thing. A single additional liberal on that court and none of them will ever vote again for the lovely distinctions in Roberts’ opinion. The Commerce Clause will be back with all guns blazing.
Suppose there was a "political" choice that said speech critical of the president was illegal?
Under Roberts logic he would be just fine with that.
There is no excuse nor explanation for Roberts behavior. It is illogical and foolish. All he’s done is give the green light to Washington that they can accomplish most any insanity they dream up through the use of the tax system and it will be constitutional.
The IRS will now become the behavior police and it will not take any time at all to equip them with drones and guns. Welcome to Amerika.
Romney can attack him for the law
Kinda hard to do when he authored the bill basically with his government reach Romney care. I don’t think Romney will say anything worthwhile. He said he would get rid of first day...I don’t know how he will do that with the inauguration and Swearing-in that day. He is making a huge promise that he can’t deliver on day one as he says. He already is being unrealistic. First 100 days would have been better but like all liberals, Romney did not think before speaking. Good Luck Romney on getting rid of Obamacare the first day in office....Yeah right.
C’mon and crap some more Skittles out of your azz, we don’t have enough bright shiny colors yet.
The problem is, most people won't bother to dig deep enough to find the silver linings. They'll hear that SCOTUS upheld the law, and that will register as victory for ZerO and perhaps "Well, that means he knows more than the conservatives tried to claim." That may be enough to convince a fence sitter to vote for ZerO in November.
Can’t make a silk purse out of a sow’s ear.
Anytime the door is opened for the Federal Gov to tax us...believe me, it is ALL bad. No silver linings in sight.
1099 Comments so far after the article in Townhall.com
“Now, Romeny has the rallying cry and significant momentum, 3 months before the election”
That is why we must vote for Romney, even if we have to hold our nose in the election booth. We don’t want a McCain event to happen again.
Even if Romney is voted in the odds of the law being repealed are slim.
I understand this point and reasons to be skeptical of the past behavior of the liberal justices on SCOTUS.
However, remember that by joining the majority, and using his words to write the majority opinion, EVERY word that Chief Justice Roberts wrote, with regard to the Commerce Clause, is in effect concurred with by ALL nine justices (Roberts spoke for all four liberals and the dissenting Justices already threw out the Commerce Clause rationale). Therefore, the rationale defeating the Commerce Clause argument, and narrowing it's use in all possible future cases to come before the Court, had a 9-0 vote.
Adding one single additional liberal to the Court can't change this precedent.
bump for a later read...
That’s great, but what about when they levy a tax on us for not having an electric car? Or a solar powered water heater? Then what?
bump for a later read...
“The Roberts Opinion: It’s Not All Bad”
Sure. And at the end of your free train ride, you get a free shower too! Life is grand, eh?
“the mandate is now just the tax on not having healthcare, which Im sure will get a snappier name in the coming days”
It’s already being called the ObamaTax. Let’s go with that.
By an enormous stretch on the tax issue, Roberts handed the Democrats a totally unnecessary victory.
You’ll never convince the hardcore ideologues but that doesn’t deny the truth of it.
The fact is that Congress has the power to tax income, and they can give a deduction for carrying health insurance.
Wow. I hadn't seen that. Young Kate is stirring the controversy here too, eh? ... as we knew it would (I must have just beat you to posting the thread]
There is no need to understand Roberts . what he did is all that matters. He effectively re-wrote this law. Judicial activism, anyone.
I give a rats rear about his personal decisions.
Actually we need to play the clips of them claiming it isn’t a tax over and over and over...and end with “The Supreme Court Ruled Differently.” Maybe even caption over them with Lies, Lies, and more Lies...”
Judicial rewriting laws is not conservative.
This is mind rot.
Liberals cry constitution about laws they like and ignore the ones they dislike. We should consider starting to fight dirty .....laws that only apply to our side are inherently wrong!!!
No, it's not just like buying gas or earning income. Those are voluntary acts of commerce. Nobody gets taxed for NOT buying gasoline. Nobody pays income tax for income the DIDN'T earn.
Roberts got it wrong. He couldn't be more wrong if he showed up a funeral for a young child, put on a pink tutu with no underwear and started singing at the top of his lungs "Another one bites the dust..." That is how wrong his thinking is.
The ObamaTax is like charging every citizen a federal property tax if they fail to go out and buy property.
More than a silver lining. I’ll take the temporary affirmation of ObamaCare in exchange for the long-term reduction in Congressional regulatory power under the commerce clause any day of the week.
>> The problem is, the Roberts precedent will bind the liberals for about seven seconds. Less if they invest in high speed shredders.
Yeah, that’s “it” for me too.
Roberts could have made all these clever points and STILL invalidated the law right now by voting with the conservatives... and that precedent WOULD have a meaningful dampening effect on the left trying to pull this stuff in the future.
If we don't get very busy and elect majorities in congress and then stay busy and pressure them to act responsibly to correct our course, we are headed for a socialistic disaster.
I fear we may already have passed the point of no return.
Since that sort of political choice ALSO violates the First Amendment, I doubt he would have been fine with it.
Any brute force ruling against zerOcare would have been quickly turned against us, since emotion rules the Left. They would have loved it and turned the sledgehammer back on us with the usual force multipliers.
Conservatives are about reality, self-sufficiency and independence. So, can everyone just stop the drama, look at what exists and go on from there?
I have read, over eleven years on this forum, hosannas to one or another politician who was supposedly the one that was going to save us. I have been flamed by putative puffed-up patriots with principals when I usually warned against investing any human being with such powers. And, usually within six months to a year, the annointed savior would then act in a manner inconsistent with the adoration heaped upon them, resulting in such logical pronouncements as “They are dead to me.”
No one is going to save anyone else. No one is consistent. We are all human. We can’t even agree among ourselves to forgo partisanship in order to gain advantage. We either work together with cool heads and a firm goal in mind, or we will be individually and collectively subjugated.
In this case, Roberts handed us some gifts, but on a dirty platter. So, what do conservatives do? Why, reject the gifts, the clear advantages, and throw them back in his face along with the offensive platter and heated epithets.
Tell me again why we usually lose?
You posted, in part: No, it’s not just like buying gas or earning income. Those are voluntary acts of commerce. Nobody gets taxed for NOT buying gasoline. Nobody pays income tax for income the DIDN’T earn.
We do get taxed for failing to do certain things, and have for a long time. If we fail to take advantage of any number of tax deductions by, for example, not giving to charity, or not buying a home, etc. etc., our tax liability is increased. I am sure that there are many other examples, but these are enough to prove the point— unfortunately.
That's what the CJ meant by his comment that they were not opining on the soundness of the act. Elections have consequences. At least in theory any Congress wanting to enact a "tax" on not having an electric car or solar powered water heater would have to present it as such. Hopefully an informed citizenry would keep them in check. If we don't want a tyrant - whether it's our guy or the enemy's - we better all get involved.
I sent my sister away with her hands over her ears and shaking her head like a little kid yesterday when I tried to make her face up to what this law really means. No more miss nice guy trying to keep the family peace. We all have a job to do - now go pay your tax!!!
Sadly you are absolutely correct.
Romney (and I am not a fan) has made a clear distinction between what is done within the laboratory of the States and what is coerced by a Central Authority.
A silver lining, the Tea Party rises up....Romney/Palin 2012 !!!
BS. It is EXACTLY to job of the SCOTUS to protect us from out of control politicians who pass unconstitutional laws. If not them, then who? What else is the Supreme court for it not to strike down unconstitutional laws? What he is saying in that sentence is that politicians can pass any law they want and SCOTUS doesn't have to rule them unconstitutional, even though they are,simply because it is the voters fault for voting them into office. What convoluted reasoning for screwing the American people. There is NOTHING good about his decision and, in fact, it doesn't make since. He contradicts himself and says we can be made to do anything as long as a tax is tied to it. He disregarded the fact the bill didn't call the fine a tax, and he disregarded the fact that the "tax" originated in the Senate, a move that should have gotten the law tossed on its own merit.
Your whistling pass the grave yard, wake the f*** up.
I think the analysis makes sense -
Roberts is fighting strategically. If he gave obozo a straight defeat, he would have handed obozo a scapegoat and all the obots will cry foul against Roberts and come out to vote for obozo;
it appears that Roberts’s ruling on the Commerse clause and the taxing power of congress is in accordance with the Constitution. He might not like congress’s extended taxing power to influence behavior, but he is not the one to protect people from the bad policies of politicians they vote into power. It is up to voters to avoid bad policies by removing the bad politicians.
So his ruling in effect paves the way for us to reppeal this obozocare monstrocity -
1. energize voters to vote out obozo and Dems by exposing obozo/dem’s lies (it is really a tax to influence behavior!)
2. since it is a tax it will be easier to repeal it - it has to originate from the House and it only takes 51 senate votes!
3. once and for all put the ‘commerce clause’ in its place!
In summary - the ruling gives us enough shock to -
vote out obozo; keep the House; gain seats in the senate; vote to repeal obozocare!
This way Roberts himself does not have to face the wrath of the obots (he knows it is much easier to face our wrath than the obots’!)
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