Chief Justice John Roberts gives Obama and Democrats a Trojan Horse

The Washington Times Communities ^ | June 29th, 2012 | Amanda Read

[philman_36]

I’m sorry but re-writing a bill from the bench is just as grievous as legislating from the bench.

Here is the syllabus...

@NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS

What, in your opinion, was "rewritten" from the bench?

[FredZarguna]

Her "analysis" has been shredded by so many Conservatives who actually understand the law, that my own contribution would be quite meager.

But, since you ask, with the kind copyright waiver permission of Fred Zarguna (me) I present to you a thoughtful demolition of her Bonfire of Inanities which I wrote on the morning of the putative "decision" and posted on this very web site in response to WaPo writer George Will. [The current blogger's take is not substantially different from his.]

=========================================================

Attempts by Sophists such as Will to spin this into a "win" are nearly as amateurish, silly, ill-reasoned and internally inconsistent as Roberts' opinion for the Majority.

Nearly.

The decision is predicated upon a notion that the authority to tax may be based on nothing more than Congress' Constitutional authority to tax under the first article of the Constitution. However, the authority itself derives from a requirement that Congress may only raise taxes to achieve what is "necessary and proper" in the pursuit of its specifically enumerated powers. This is made clear in Article I, which adds a further requirement: that the enumerated powers are further restricted to only those things which promote the "general welfare."

Example: Congress is granted the specific authority to create post offices. Therefore, it may raise taxes to obtain that effect (necessary and proper) but it may not create a post office just for the benefit of Fred Zarguna (because it would be solely for my benefit and a few of my friends, and would not promote the general welfare of the United States.)

Therefore, it was incumbent upon proponents of this law to place their finger upon some part of the Constitution wherein an authority to regulate health insurance companies was granted. Grasping at a legal straw, the liberals reverted to an old favorite: the Commerce Clause. But the Court ridiculed that notion, and Roberts himself made it clear that theauthority for the mandate could not come from that source. Nor could it come from the "necessary and proper" advancement of the whole act, as again, Roberts himself argued.

But now, we have a FAR larger problem than we had before, because Roberts -- writing on behalf of his liberal majority -- has claimed that the authority to tax for any purpose whatsoever is contained in the Constitution, a laughable position that even the most rabid liberal has never (until now) advanced as a legal theory. The argument is either circular (you have the authority to tax because taxation itself is necessary and proper) or advances a claim concerning implied powers under general welfare which has never before been proposed.

In effect, all restrictions on the legislative power have been swept away by this decision. Any law is now Constitutional provided only that a fine, penalty or tax is imposed.

Yes, it's that bad. But it actually gets worse...

Because hitherto, the Court would not even have granted Cert in a tax case until someone with standing came forward to challenge the law. In fact, the Court could not do so even if it wanted to, because of the Anti-Injunction Act, and no one will actually be "taxed" by the mandate until 2014. In the instant case, the Court has used thoroughly tortured logic to claim that: 1) Even though the mandate is a tax 2) the AIA doesn't apply, because Congress did not believe it was a tax when it was passed.

Howzzat again?

That's right, the majority has not only destroyed the concept of limited government with this ruling, but the Court itself actually broke the law in even allowing the case to be heard.

But wait, it gets even worse...

Because Roberts' opinion also holds that even though the "tax" is not the kind of tax permitted in the first article of the Constitution, and even though the "tax" is also not a tax on incomes covered by Amendment XVI, it is a valid tax (of what kind he does not say) and the existing case law already permits it.

This is an entirely new doctrine: preemptive Constitutionality. No Court has ever ruled in the past that the provisions of a law which as yet affects no one is Constitutional/Unconstitutional. Roberts' opinion signals exactly that. (See my previous posts for a quote from the majority.)

Bottom line: this is the Dred Scott/Roe v. Wade of the 21st Century. June 28th, 2012: A date which shall live in Infamy.

It's really that bad.

Consider yourself answered. And consider your blog-pimping friend answered as well.

[WhistlingPastTheGraveyard]

John Roberts as jujitsu super master. This is the most breathtakingly moronic piece of desperately wishful thinking modern conservativism has ever engaged in. It hurts to watch it.

[thecodont]

Great article. Thank you.

[philman_36]

That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.” If the Government hadn't presented this second argument they wouldn't be in the fix they're in now with trying to still call it a penalty instead of the tax it was always intended to be.

Snip...

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

...it is a valid tax (of what kind he does not say) and the existing case law already permits it.

A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. You don't agree that it's a capitation tax and such are authorized in the Constitution?

[philman_36]

Nope... A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.”
Not a capitation tax. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
Not a direct tax either.

Perhaps an excise tax?

[philman_36]

The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.

What's that old liberal cry...Tax the rich!

[garandgal]

Well, follow the links on this and be even more horrified that serious consideration is being given to this piece of drivel.

A twenty-something, home-schooled blogger, who just finished ONE course in Constitutional Law, “prayed about” this decision and was handed this conclusion (by God apparently).

http://amandaread.com/

[tsowellfan]

Wow! Too bad John Roberts didn’t know about all this good he did. If he did he could come back from hiding on that island he said he’s going to.

[fortheDeclaration]

Yes, but the Supreme Court is suppose to strike down bad laws, and this is a bad law.

[Jacquerie]

Yeah, he'll leave decisions to the people's reps as long as they don't express it through their state legislatures.

“Arbitrary and capricious” is how the appeals court described the Arizona law and Scotus agreed. This despite that law went through the committee process, had floor debates, etc.

OTOH, Obama was written in the dark of night by Marxists moles, without hearings, no floor debate, and not a single rank and file Congressman or Senator even knew what it contained.

So which law was arbitrary and capricious? A pox on Scotus and ‘F all rats.

[plangent]

Capitation! Now here’s a starting point for a new look.

Had Obamacare merely established an annual tax of $2,300 on every citizen of whatever age and then provided a waiver upon presenting a current receipt for paid health care insurance premium, it would have been much simpler.

Also, such a straightforward approach would have doomed Obamacare from the get-go. It’s a tax.

The Dems needed their chicanery to get the bill “deemed” into law.

[maxwellsmart_agent]

Did he have to use a lie, that this is a tax, to effect it?

[samtheman]

bookmark

[paudio]

The way I see it, Roberts has made this year’s election a referendum on ObamaCare. If people want to get rid of it, they have to vote against it. Since it’s framed as tax, it’s quite unlikely it’s gonna return soon if it’s repealed.

[Rearden]

Very good read. I have already posted here that I think that Chief Justice Roberts did a very brave thing, something rarely seen in public service today.

[Vinnie]

What role do judicial clerks play in judges decisions?

Could they not sway an opinion by editing via omission case and precedent research?

[EQAndyBuzz]

How come when Roberts votes with the Conservative side he is a brilliant Constitutionalist?

This man was put on the bench because of his constitutional knowledge. If anything, of the 9, he might have been the only justice that actually looked at this rather than playing politics with it.

I fon’t agree with his decision. But that’s what it is. Now go to the voting booth, elect the Republican and have this changed by the will of the people.

Then when the RATS sue, which they will, SCOTUS can tell them to piss up a rope. And it would be 9-0.

[Chaguito]

1. Elect solid majorities in all three branches.

2. Repeal ACA before the freshmen succumb to the Beltway.

3. Constitutional amendment to clarify Congress’ power to tax, i.e., negate the effect of Roberts’ Rule.

4. Then, and only then, has We the People taken the helm.

Otherwise, Roberts has sunk the Republic.

[Rearden]

Roberts never said any such thing. He said that it wasn’t his job to define what is, and what is not a sh*t sandwich. He reminded us that that duty belongs to those of us who vote.

What’s the matter, are you too lazy or too self absorbed to vote these criminals out on their asses?

Let’s try something different this year, instead of just going to the polls and casting your vote, this time try to find at least one person who doesn’t normally participate, and make sure that they do this time. Get them registered, drive them to the polls, talk to them as you should talk to your neighbors so they understand your point of view. Try to make them understand that this November will be the only opportunity we will have to get rid of this monster by electing people to the House, the Senate, and the White House who will make this their first priority as soon as they are sworn in.