My own confusion with Roberts is that Roberts took liberties with Obamacare by *declaring* it a “tax”, while the Obama administration itself was mightily trying to avoid that word, but nevertheless the act of calling it so, ended up allowing it to stand. Does that make sense?
Your argument is not foreign. There were some moderate and conservative media-musings and editorials that concluded the very same thing, I recall. Those arguments got very little, or possibly no play at all around here, but I know the argument you’re repeating was entertained in some quarters.
Possibly, that argument was deep sixed since it was not helpful to the wild discourse the Republicans were engaging in at the time, against the Marxist side of the aisle. Roberts was one more pin cushion. The laxity on publishing much on the alternative view favoring Roberts move, left at least a rather enduring and sizable question mark against trusting Roberts and also more than plenty of outright disdain.
Hang right in there. A lot of us publik schule kids are actually trying to learn more about political and judicial chess being played for the win in the end.
You are correct, what Roberts did was damnably confusing, claiming that the mandate was a tax. And what the Obama Administration did, arguing in front of the court, made it even worse. To wit:
- To sell it to the public, it was argued that the individual mandate was a fee, not a tax, so OC could be claimed to “not raise taxes.” Nobody bought it, of course, except the media and Dem partisans.
- Then, to justify it to the SCOTUS, the Obama Administration claimed it actually was a tax after all. But this then put the entire legislation at risk because OC originated in the Senate, and a pesky clause in the Constitution clearly states that all tax legislation must originate in the House.
- Nevertheless, none of the nine justices made the claim that the entire OC was unconstitutional for this reason.
I have to believe that Roberts knew exactly what he was doing, but cannot ever say it until his memoirs are written. Why? Because he wanted the new precedents to stand exactly as they are written, and not be interpreted ad nauseum.
It also seems that his primary philosophy is judicial restraint, e.g., not writing law nor exceeding the originalist intent for SCOTUS. I bet that his memoirs will say just that, that he knew 50% of the nation would be furious regardless of what he decided, so he made the call not based on his fundamental conservatism but on his judicial philosophy, which in this case conflicted with his conservatism.
Now, I have to add this disclaimer for the peanut gallery. I am NOT trying to justify what Roberts did; I wanted Obamacare overturned too. I’m just trying to understand him. And, also, be comfortable with the fact that he was not rolled, was not bribed, is not a tool for Democrats.
If these concepts still can’t sink into your head, well perhaps you should use an augur and drill a few more holes. Because, clearly, your eyes and ears and nose are not enough to let the light inside.
Good posting, RitaOK.