John Yoo: Chief Justice Roberts and His Apologists

http://online.wsj.com/ ^ | June 29, 2012 | John Yoo

[Para-Ord.45]

Some conservatives see a silver lining in the ObamaCare ruling. But it's exactly the big-government disaster it appears to be.

Justice Roberts's opinion declared that the Constitution's Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

[Para-Ord.45]

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

While some conservatives ( Krauthammer/Will)may think Justice Roberts was following in Justice Marshall's giant footsteps, the more apt comparison is to the Republican Chief Justice Charles Evans Hughes.

Hughes and Justice Owen J. Roberts began to switch their positions. They would vote to uphold the National Labor Relations Act, minimum-wage and maximum-hour laws, and the rest of the New Deal.

But Hughes sacrificed fidelity to the Constitution's original meaning in order to repel an attack on the court. Like Justice Roberts, Hughes blessed the modern welfare state's expansive powers and unaccountable bureaucracies—the very foundations for ObamaCare.

Hughes's great constitutional mistake was made for nothing.

Justice Roberts too may have sacrificed the Constitution's last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius's limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

(excerpt)

In layman's terms,

The USA is F***ed !

[jimbo123]

Roberts was blackmailed over the illegal adoption of his kids:

XXXXX DRUDGE REPORT XXXXX THU AUG 04, 2005 11:35:09 ET XXXXX

NY TIMES INVESTIGATES ADOPTION RECORDS OF SUPREME COURT NOMINEE’S CHILDREN

**Exclusive**

The DRUDGE REPORT has uncovered a plot in the NEW YORK TIMES’ newsroom to look into the adoption of the children of Supreme Court Nominee John G. Roberts.

http://www.freerepublic.com/focus/f-news/2900724/posts

[Paladin2]

JF’nRoberts.

[NavVet]

According to Roberts, if the Federal Government passes a law mandating participation in interstate commerce with no enforcement mechanism whatsoever, that violates the Commerce clause and is unconstitutional, but if the government adds a tax or penalty to force compliance with the directive now it becomes constitutional.

The fact that even the left isn’t laughing at Roberts proves that no one even expects the court to make sense. It is simply a policy making body with the last say on what government policy will be.

[TEXOKIE]

bfl

[sergeantdave]

$303 million is earmarked in this health care law to hire more gestapo to harass people it believes are not in compliance with the incomprehensible IRS laws. About 4,000 will be hired.

Remember, these gestapo pigs live in your neighborhoods.

[biggredd1]

john roberts could have been a great American, now he is a great commie.

[Tzimisce]

You’d better be very, very careful who you vote for in EVERY election from now on.

Those people can MAKE you do anything. As long as they call it a “tax”.

[Sir Napsalot]

Thing is, we don’t need luminaries to tell us Roberts’ ruling (yes, I call it RULing over us) was a slippery road, and sets precedence for the future forever.

We don’t need Roberts’ nuance and others to tell us there is some ‘good’ in this looming disaster.

I just don’t get it, IF I know ObamaCare was a monstrous bill against the consent of US, the people, why would some ones way smarter than me not understand there is nothing CONSTITUTIONal at all about it?

[HerrBlucher]

Roberts does know the law is unconstitutional, but it didn’t matter to him. His goal was to find a way to make the law stand in any way that he could, regardless of how ridiculous the legal logic was. He succeeded in the same way the OJ jury succeeded. He made a finding that made absolutely no sense given the information before him, because he could.

[Paladin2]

Roberts apparently agrees with the guy who appointed him.

[Verginius Rufus]

When Roberts was nominated, he looked like an excellent choice. Who knew that he would turn out to be Neville Chamberlain reincarnated? He should know better than to think that appeasing a bully will solve any problems.

[Paladin2]

Roberts now has his legacy and his failed philosophy exposed.

[DManA]

The apologists have to minimize the damage this man wrecked because he was appointed by a republican, and Bush in particular. Here is another in a long line of republican appointees who join the enemy.

Elections have consequences? Pfffttttt. Not when it comes to Supreme Court appointments.

[MarDav]

“When Roberts was nominated, he looked like an excellent choice.”

This logic (and I’m not assailing you, we are all guilty of it at what time or another) has ever been the problem for human decision-making.

[weston]

If Roberts sees his job as one that needs to find a way possible to make laws Constitutional, then why didn’t he try to find a way to make Arizona’s Immigration law Constitutional?

[MarDav]

“...at what time or another...”

Geez...should read, “...at one time or another...”

I gotta blame this one on global warming...

[jonno]

...the mandate is transformed into a constitutional exercise of Congress's power to tax.

Which simply means that 'We the People' must be diligent (and on the whole we have not been) to ensure that our representation reflects pro-freedom tax policies.

Sure - congress has the power to tax. But they also have the power to UN-tax.

It is up to us - we cannot coast. It is going to be a life-long struggle. Get used to it and stop whining...

[okie01]

then why didn’t he try to find a way to make Arizona’s Immigration law Constitutional?

Because SB1070 was a state law -- and was an embarrassment to the federal government. Obamacare is a federal law.

Evidently, Roberts' concern for bending the Constitution extends only to the maintenance of federal primacy.

[riri]

now he is a great commie.

Worse. Commies can, at least, be principled. Roberts is a stooge for the left. No different than the judges who presided over show trials in Mao's China or Soviet Russia.