Jul

3

As Anne O'Connell, a professor at University of Cal Berkeley, said "there are important cases in which the chief justice has to put the court's interests above his own ideological or jurisprudential views. This was one such case."

One would suggest that the court acts to survive and prosper like the badger or any other organism subject to incentives and emoluments.

Gary Rogan writes: 

We may never know whether he wanted to keep getting invited to all the cocktail parties or they made him an offer he couldn't refuse, but he did change his mind at the last minute. In either case, a man with a lifetime appointment somehow has to side with card-carrying communists while making basic mistakes (like a tax law cannot be challenged until the tax is actually collected, and several others), and redirects trillions of dollars of economic activity. All this to make sure that the rest of them with lifetime appointments and no known personal threats of any kind have no chance of being marginalized? Never has so much been sold out for so little even if this subhuman was threatened. 

David Lilienfeld writes: 

Two comments:

1. It's significant how many in our country have as low regard for the SCOTUS as they do. Even more so when one has a Senator questioning whether the court has any standing to rule something as being constitutional or not. The dysfunctionalities present in our government are manifesting at the SCOTUS, and the populous is none too pleased about this. Given that we live in the iPhone Society, one might wonder when the populous would expect anything else.

2. At the time Truman desegregated the military, 65 percent of the country opposed the action. When Brown v Board of Ed was decided, 60+ percent of the country opposed integration of the schools (though this was to change rapidly in the wake of the decision). Courts and politicians are political animals, but they are also leaders–or at least at times in the past, have been leaders. Unfortunately, as we have been without political leadership for sometime, it isn't surprising that this case was decided in such a manner as to defy just about any and all expectations. (There are a lot of people on Intrade who got hosed in this decision).

Rocky Humbert writes: 

Have you even read Robert's opinion? I did. He didn't do any favors for the left in it; he takes a swipe at Wickard and he is very clear that upholding the mandate should not be construed as any expansion of government power. Essentially, he wrote that if it walks like a duck, talks like a duck, smells like a duck, then it's a duck. Substance over form. He blew away the government on every other substantive argument.

In the future application of this ruling, I believe that his opinion won't be used as opening the door further to govt intervention; quite the opposite is true! But unless you read the opinion, you won't know this and the MSM won't report it. I find it disappointing that the court ruled this way, but as I noted yesterday morning, this was not an easy decision and the opinion reflects that.

I find it reasonable for you to quarrel with the substance of his opinion only after you have read it. But judging from your comment, you haven't. And you comment is vacuous and snarky.

Read the opinion and then comment on the substance.

Gary Rogan adds: 

This ruling is a tortured conclusion looking (and failing) to find reasonable arguments as far as the "tax" portion of it is concerned. What is being taxed here?

It was sold as a mandate and this legal genius finds it to be a tax. If someone sells you a duck claiming to be an elephant, and you find that it's OK because you have a license to sell ducks instead of finding fraud, you are not operating in good faith. Especially if the duck isn't even a normal duck but some mutated monster resulting from an unfortunate breeding of a duck with a goose.

He cuts one type of power found in the "living breathing Constitution" by progressive activists and adds another power of similar flawed pedigree. He did no favors to the left? He SAVED the damn left, to continue their abuse of the Constitution and the country. This man is a snake.

Garret Baldwin writes:

"It was sold as a mandate and this legal genius finds it to be a tax."

Respectfully, it was sold as a mandate to the American people and to representatives in Congress. But when it went to the high-court, it was sold as both a mandate and as a tax. There were two arguments provided on behalf of the Administration. One was that the mandate fell under the commerce clause. In essence, Congress was ruling that it could create commerce in order to regulate it. They were creating a program that forced people to buy something, and that would fall under the clause. Could Congress then make you buy anything it wanted, became the question.

Roberts ruled that down. Even Sotomeyor disagreed with that logic.

But then the issue of a tax did in fact come up in discussion. Though the President said that it wasn't a tax on ABC in 2009, the administration argued in front of the court that the mandate fell within Congress' taxing power… but attempted to argue that it was not a tax… They argued that PENALTIES are within the reach of Congress' taxing power, but that this was not a "revenue generating policy" which is what a tax technically is.

What Roberts ruled is that Yes, this does fall under Congress' taxing authority, but you're not allowed to call it a penalty. It's a tax. Congress can tax whatever it wants, soda, medical devices, and even inactivity. For the optimistic on the right, and for people who have being saying this is a tax all along, the ruling isn't necessarily the worst in the world. First, it shuts down Congress' ability to create markets under the guise of the commerce clause. This was especially concerning for me because I feared they would try to create Cap and Trade through similar means. Second, Democrats are now the "Tax Party", and Roberts has given Romney ammo. This is a tax. And the President swore that no new taxes on the middle class would hit them. There are 21 new taxes in this law, and seven of them directly impact the Middle Class.

"It you think healthcare is expensive now… wait until you see what it costs when it's free." PJ O'Rourke

Rocky Humbert writes: 

This will be my last post on this subject, so Mr. Rogan et al should feel free to label me a "snake," "commie," or whatever choice epithet that he uses for people who don't agree with his self-declared (and as yet unproven) "superior" weltanschauung.

I am starting to see non-legal analyses on the the web, which may over time cause the currently-celebrating liberals to realize that by bringing this case to the Supreme Court, they have opened a Pandora's Box which they will rue. Sure, you can bitch and moan that they didn't strike down the ACA. But this ruling will have a much more important effect in the months and years ahead in terms of LIMITING government. Sure, I had hoped that they would strike the ACA down, but I'm starting to believe that what Roberts did here may be vastly superior IN THE LONG TERM.

If Mr. Rogan can turn off his kneejerk reaction for just a moment and read the following URL, I think he will begin to see that Roberts may have just proven Voltaire's Maxim: "The perfect is the enemy of the good." It's quite possible that in 50 years, the historians will look back and see this as a defining moment when the pendulum which started in the 1930's begins to swing back.

While I believe the ACA is bad economics and bad policy, I believe that the precedents which this ruling establish (and to which lower courts will be bound) are vastly more important and more supportive for freedom and long term prosperity. I am hopeful that as today's scoreboard and November's election fade from memory, the lasting positive consequences (for those on the right) of this ruling will come into focus.


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9 Comments so far

  1. douglas roberts dimick on June 30, 2012 4:06 am

    1 Plus 4/4 Equals 5/5 – New or Old Math for Court’s Doctrinal Divisions?

    Having studied neither this act nor its legislative history, I have not formed any (pro or con) opinion about the 2012 Health Care Law. That said…

    The court’s decision — collectively the opinions of JR, The Court, JG for her Gang of Four, and JK for his Gang of Four — is (1) coherent relative to the substantive realities of the complex constitutional commerce and taxation issues involved and (2) fair concerning the jurisprudential theories primarily revolving around judicial activism a la our federal constitution.

    Given comments by Rock and Gary, we might focus upon the doctrinal (and political) interplay of interpretations between the commerce and the taxation powers of the federal government.

    The JG-G4 concurs with JR that the law was constitutional as a tax but diverges with the cj’s “crabbed reading” of the Commerce Clause. They proffer a broader interpretation of Congress’s plenary powers to regulate the national economy.

    JR distinguishes here between power to regulate from such acts “akin to the police power.” That specific reference may be intended to address both commie concerns (such as Gary’s) while helping others (like The Rock) swallow this ruling a bit easier.

    From a doctrinal perspective, the JK-G4 dissent appears problematic. Such is the nature of correlating (or corralling) theories of judicial activism.

    Being the front and center issue for JK et al, taxation presents passionate groundwork that can “swing” from a narrow stall in political-barnyard policy (a la Animal Farm) to stampeding (from the bench) out of a gate of judicial precedent. For instance, if the court had stuck down the law’s “complex structures and provisions” for being sulphurous to constitutional barring of federal government power, then would not the court have imposed “judicial tax-writing” – a form of activism in of itself in that the health law (or tax) was approved by the authorized representatives of the people?

    JK-G4 would respond “nay” there but for here whereby congress did not say it was creating a new tax, to wit: if congress does not call it a tax, then the judiciary cannot interpret such a statute as being a tax… “Taxes have never been popular…” Which reduces this aspect of the case (for the dissenters) to utilizing procedure to achieve substantive divergence in jurisprudential theory( or politics), does it not?

    My Take… JR as CJ has a primary mission to concern himself not with the politics of presidential electioneering but instead upon that of his brethren. These years constitute his legacy – his court.

    Accordingly, having been careful not to label or invoke the terms “conservative and liberal” here, one may now acknowledge the wisdom of JR’s management of this potential “deal breaker.” With 28 governors so petitioning, that outcome (i.e., a mandate “forcing people”) is elementally divisive to the American experiment with individual freedoms. This issue forms a frontline among many of our citizenry, so opposing each other from the two polemics – yet ironically including the middle of that political spectrum as all must either pay in or be taxed.

    Whether or not this decision will prove to be his Marbury vs. Madison (as like-kind to Justice Marshall then) perhaps overstates the drama here relative to inter-branch politics. Nevertheless, Justice Roberts can and should be recognized for acceding beyond serving only his own personal philosophy to realize institutional integrity.

    At the end of this day, regardless how one analyzes the health care act on its political and economic merits, we each are free to speak and act accordingly…

    You can broadcast and
    you can publish and
    you can assemble and
    you can petition and
    you can protest and
    you can campaign and
    you can contribute and
    you can vote and
    you can volunteer (in appointment or election for public service)…

    All being freedoms to reward or punish those others among us who currently serve as the rascals of government.

    Living in a communist country now for six years, one may see (sometimes hear if not smell or taste) here everyday those very police powers that both Justice Roberts alludes to in objection and tyrants exercise with impunity.

    One witnesses here how such centralized powers far exceed notions of taxation without representation. Whether you can see or not, said government with a state owned media can corrupt, confiscate, imprison, and kill without recourse or reciprocity.

    All of which represents the old math of humanity.

    As with our chair and though a law school graduate, I know little of the law yet am fain that this court’s decision is formulated on a best efforts basis. The ruling reflects how it (the court) as our two other branches of government now appear proportionately divided on many if not most issues — including commerce and taxation. Thus, why would one expect a disparate solution from these nine justices?

    Such is the new old-math for the jurisprudence of our era.

    dr

  2. Steve on June 30, 2012 1:11 pm

    “But this ruling will have a much more important effect in the months and years ahead in terms of LIMITING government”

    With all due respect, how can anyone who has lived in America in the last 13 years honestly believe that limited government can actually occur without an unprecedented revolution? And to write that the robed clowns that run the Federal courts will be the stewards of this move to a limited state is just totally absurd.

  3. Matthew on June 30, 2012 10:55 pm

    Well said Steve. The flexions(I prefer elites) just putting another brick in the wall. Here is a piece from a fella who might know a thing or two about the chief justice.

    http://dailycaller.com/2012/06/28/john-roberts-surprising-decision/?print=1

  4. steve leslie on July 1, 2012 3:52 pm

    with all due respect to DRD You remind me of Frederich March in Inherit the Wind where he tries to make a summation to the case and has a heart attack. He of course was trying to impersonate Oliver Wendell Holmes.

    Two suggestions This website is not the Harvard Law Review and the people who proliferate the site are not constitutional law professors. Stated otherwise “Less is More”.

    I always respect Rocky Humberts comments and Jeff Watsons(but don’t tell him that I said this. His ego is big enough.)

    We can espouse theories on what the High Court true intentions were. In the end, the facts remain.

    For now the ACA act or Obamacare is the law of the land. You want to call it a penalty or a tax a levee a or anything else go at it. In two years as it stands it will be the largest tax levied in the history of the world. My question is to the 50 per cent who pay taxes and will supplement those who pay no taxes. How does this make you feel.

    Final commentary:

    The President lied to the American people. He stated this is not a tax. His counsel argued that if it will not stand under the commerce clause as a penalty, it can stand as a tax. John Roberts himself said this is a tax. THE PRESIDENT LIED. This is just one more in a series of major lies across 45 plus years.

    We do not have troops in Cambodia
    Read my lips No new taxes
    I smoked but did not inhale. And I did not have sex with that woman. It all depends on what the meaning ofthe word is is.
    We have evidence of Weapons of Mass Destruction.
    I received a Purple heart from being on a swift boat

    This time the cost is going to be in the trillions. 50% of the eligible voters in the US do not find 15 minutes to vote once every 4 years. ARE YOU JUST GOING TO BITCH AND ARGUE SMALL DETAILS OR ARE YOU GOING TO DO SOMETHING TO CHANGE IT. In 2000 out of 100 million votes cast the deciding electoral college in florida was a difference of less than 1000 votes. Your vote matters.

  5. douglas roberts dimick on July 2, 2012 2:56 am

    Hi S,

    Four comments…

    1. My word count is 816 to your 380, so you are definitely less and I am more there. Well done.

    2. I graduated at the bottom third of my law school class – had a blast during the three years though — and have never been licensed, so your impressionisms and law review comment both have me smiling…. too funny.

    3. The purpose of my article was in response to The Rock’s query whether Gary had read the article. My attempt here was to reduce THE 191 PAGE document to a synopsis for all of us to launch into a discussion about immediate and long-term effects of the decision.

    4. Your closing rally for all to vote is an example, however, where more is more. I worked on my first political campaign — Ed Muskie’s last US Senate re-election – at age 17. The 35 years since indicates to me that voting is no longer enough; the two-party system has devolved itself to pre-Watergate.

    That said, I do agree with RH that people seem to be talking about the impact of this ruling will little or no understanding of the decision itself. Your comments strike me accordingly.

    Have a nice day…

    dr

    Ps. Feel free to add these 206 words here to my tally. And just in case you are interested…

    http://www.harvardlawreview.org/search.php?searchtext=commerce+taxation+powers

  6. steve leslie on July 3, 2012 5:30 pm

    To DRD I am glad that you took my poke collegially. I actually misspoke. Frederick March was impersonating William Jennings Bryan not OWH. A great interchange at the end of the movie one of the finest in history of film.

    I went to Harvard in 1981 to visit while on business.

    I could never vote for a pol who cried in the snow.

    Did you actually count all the words? Now that is funny.

    I know very little about the law. I prefer letting scholars discuss this and advise.

    Best Wishes, I think I still beat you on word count lol

  7. steve leslie on July 4, 2012 7:54 am

    On the issue of brevity, An aide to President Coolidge (one of the greatest presidents of the 20th century for many reasons) was in a discussion with The President. He told the President who was known as “silent Cal” that he made a wager with a gentleman that in a conversation, he could have the President utter 3 words. Collidge’s response was “You lose”

  8. steve leslie on July 5, 2012 9:18 am

    Since the SCOTUS has ruled that this is a tax, could there be future litigation based on the fact that Congress does not have the right to tax someone for something that a person has not received. Restated Could this be revisited on these grounds once the so called tax is implemented.

  9. douglas roberts dimick on July 6, 2012 2:51 am

    The More or Less For Article V

    1. To count words, just cut and paste into a doc, go to review, and click word count.

    2. On brevity, well, there you have it… NOT… Another 1,162 words here.

    3. I listened to the three segments of oral arguments.

    http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

    I do not believe this issue was of focus because of the “penalty not tax” positioning by the government et al. Not sure, though…

    Also…

    http://www.youtube.com/watch?v=Qj3Eo5Vae3g&feature=g-all-u

    You might enjoy the doctrinal simile (a la the Catholic Church) by William Buckley arguing the “alternative of overturning the Supreme Court by Constitution Amendment.” Alas, we return to the political aspects of state and federal governance. So digressing…

    My big task that fall election was escorting Muskie at Fryeburg Fair on a cold, rainy day. Oxford County remained heavily republican – my Grandfather was one of the first D’s in the county and had been on the fair committee for years. It was his last senate campaign; he did not want to be there, I sensed – then, again, it could have been the fact that he got stuck with an inexperienced youth to cover his flank and run point among tens of thousands of people at a overcrowded fair grounds.

    Still, Ed Muskie provided this then impressionable, distinctly naïve high school student with lessons of ingenuity and fight that fall. He and Grandfather joked how they would caucus in a phone booth during the early days when Maine was the last bastion of post-war, one-party Republican states in New England.

    I have no idea whether Muskie shed a tear while speaking in defense of his wife a la the Union-Leader newspaper attacks… From…

    http://findarticles.com/p/articles/mi_m1316/is_v19/ai_4696993/

    “Far worse, in Muskie’s eyes, was Loeb’s decision to reprint, as another front-page editorial, a bitchy portrayal of his wife, Jane, that had originally appeared in Women’s Wear Daily and was picked up in edited form by Newsweek. The article depicted her smoking, drinking, cussing, and generally behaving in a way conservative New Hampshire voters might not think becoming in a prospective First Lady. Muskie decided to hit back at Loeb…

    Hence, the requirement for those who are seeking to “make news’ is itself paradoxical: They must, ideally, do something unusual, unexpected, or unprecedented. But they must do it in a time, place, and manner that fit the unvarying routine of the news organizations.

    The Muskie appearance at the Union Leader met both needs. It is unusual for a candidate to denounce the publisher of the leading newspaper in a state where he is campaigning. The normal rule in political campaigns is to ignore such attacks, or deal with their instigators at arm’s length, through a letter to the editor or a rebuttal from the press secretary; “you don’t get into a fight with anyone who buys ink by the barrel,’ as the saying goes. Muskie’s denunciation came at a time when Loeb had more than a week before the primary to reply. And the picture of a major presidential candidate delivering his denunciation on the doorstep of the newspaper–rather than from a distance–was also unusual enough to guarantee attention.

    Still, the question is: Did we see what we thought we saw? Years later Muskie told me:

    I arrived in Manchester tired, nearly exhausted. The staff said that I had an opportunity to make a point about Loeb, who was personally unpopular with Democrats in the state. So I yielded.

    I did not cry. I know it is not easy to distinguish between anger on the verge of tears and crying, but there was no flow of tears . . .. There was melting snow. But I choked up in my anger, and it was a bad scene, whatever it was. Interestingly, the first reaction I heard that day was positive, that I had confronted Loeb and told him what I thought. Only later did I hear the reaction that it was a sign of weakness on my part, that it was disturbing people. Eventually, the reaction was devastating.

    Jim Naughton, who covered the story for the Times, told me that he was standing at Muskie’s feet, “looking up directly into his face . . . and I swear to this moment I’m not sure if he was in tears.””

    Regardless if mistaken for melting snow, the point is that his presidential candidacy was lost in the rough and tumble of an election that was eventually followed by that winner’s presidential resignation. W’s tenure minded me of Nixon in this sense… he went out with simpatico commensurate to how he came in… a get as you gave payback.

    If asked? Muskie did not cry. Loeb and the (Dirty Tricks) embryo of what would become out of control in CREEP four years later were at work there.

    Bottomline: the Senator was a fighter not a crier.

    Aside: George Mitchell chaired that campaign, which would eventually have him becoming leader of the US Senate. Anyway…

    Next election, I became an aide to a neighboring friend of the family who ran for the Republican gubernatorial nomination. Graduating top in his UM law class, Charlie Cragin reminded me of Muskie. He too fought for his beliefs and sought to serve. Although he did not become governor, he served with distinction at state and federal levels of politics and government. Fair to say, he made a difference.

    Aside: Olympia Snow was first elected to Congress that fall. I saw her as well as Bill Cohen develop their careers – was Cohen’s warm-up catcher for the Bridgton Republican-Democrat softball game…

    That fall, after Charlie lost the nomination, I helped an independent candidate – my mother’s Fryeburg Academy classmate. Marian E. Gown was a Democrat in a Republican District, so she ran as a Republican whose voting record caught up to her among state party types after her first term, then turning Independent, which resulted with her Not being re-elected.

    All that campaigning was followed by serving as an assistant lobbyist to my Oxford Country Republican Chairman Uncle (Phil Andrews) during my undergraduate studies. I would maneuver among those of the halls in the state legislature “visiting folks” – that is what Uncle Phil called it.

    We represented agricultural interests… trying to help farmers. I learned loads and had more fun than a college student should.

    So 5-0 (per Steve Margaret in Hawaii 5-0), yet another blatant affront to your “war against too many words” here with my working around to retort “your vote matters” call to arms. You sound like me that day at Fryeburg Fair.

    Yes, still true but rather naïve, as it was then. On the farm (as well as at the state house), we would say that “you are jerking yourself off” – to put it nicely.

    Why don’t you do a confab with the Chair and his courtiers to organize a movement for ratification of a constitutional amendment? Article V provides two ways to go about it…

    http://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution

    Count me in… we can fix the other systemic problems in one shot…

    dr

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