Krauthammer: Roberts pulled off one of the great constitutional finesses of all time

posted at 12:41 pm on June 29, 2012 by Ed Morrissey

I’m normally loathe to gainsay Charles Krauthammer on politics or on health care.  He has been one of the bright conservative lights in the commentariat for longer than I’ve been in the club at all, and normally I don’t find a need to dispute his point of view.  Today, though, I find his declaration of victory in the ObamaCare decision just a wee bit difficult to buy … and fortunately, we don’t have a mandate to purchase it:

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature. …

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

Yeah.  Except, like Allahpundit argued last night, this is a distinction without a difference.  Let’s assume for now that future courts will follow the limitations that Krauthammer celebrates in this bill, even though this court didn’t bother to follow Lopez when it had the chance with Raich.  Instead of imposing federal mandates in areas outside of actual interstate commerce, all Congress has to do is craft them as taxes.  Roberts somehow concluded that people have “choice” in refusing to comply with mandates as long as they’re willing to pay the tax that follows.  That’s as absurd as saying that people are free to rob banks as long as they’re willing to pay the “tax” of 20 years in prison.

William Jacobson argues that all of this is self-delusion among conservatives straining to perceive silver linings:

But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.This was the hill to fight on for any conservative Justice of the Supreme Court.

Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same:  Until further notice Obamacare is the law of the land.

Sure, we now are motivated for November.  And maybe in the end we will get rid of Obamacare.

But that is then and this is now.  And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.

On the other hand, John Hinderaker writes at length about Roberts’ decision, disagreeing with it but calling it “reasoned” and respectful of prior precedent.  The real lesson for conservatives in this loss is that the Constitution isn’t really a bulwark against federal power, and neither is the Supreme Court:

On these issues, the dissent sometimes makes cogent points and sometimes just splutters. Given the current state of the law, the questions at issue are close ones on which reasonable people (and judges) can differ. But, as I said, I found Roberts’ opinion rather persuasive as an articulation of current law.

One more point we should not lose sight of: the debate over Obamacare may have led some to believe that constitutional limitations on federal power are more significant than is actually the case. There is no dispute–none whatsoever–that under longstanding interpretations of the Constitution, Congress could enact socialized medicine. That would be deemed (contrary to Madison’s understanding) a proper exercise of the federal government’s power to tax and spend on behalf of the “general welfare.” The only reason why Obamacare posed knotty constitutional issues is that Congress elected to force insurance companies to administer socialized medicine on its behalf, in legislation that is essentially National Socialist.

So I am unhappy about today’s result, but not because it is out of line with past decisions of the Court upholding ever-expanding federal powers. Rather, because I had hoped that the current Court was poised to begin undoing many decades of bad jurisprudence. In that hope I was sadly mistaken.

So what is the bulwark of individual liberty against federal power?

Scott made a great point earlier today: contrary to popular belief and its own self-image, the Court has rarely been much of a bulwark on behalf of individual liberty. Certainly it has acquiesced, not just today but for many decades, in a steady expansion of federal power beyond what is contemplated by the Constitution. Today’s decision was disappointing, but probably should not have been unexpected, and would not have been, but for the three days of arguments that highlighted the constitutional problems posed by Obamacare. It has been a long time since we could even hope to rely on the courts to protect us against further accretions of government authority. This is a democracy, and if a majority of our fellow-citizens are content to live as wards of the state, subsisting from cradle to grave as dependents, we are, frankly, screwed. There is only one place where freedom and a proper constitutional balance can be restored: the ballot box.

If there was any victory for conservatives yesterday, it wasn’t in the Roberts opinion, which will almost certainly get ignored when the next “crisis” resolution ends up in the Supreme Court docket.  It was the reminder that elections matter.  The only cure for ObamaCare is a defeat for Barack Obama and Democrats in November.


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As much as many don’t like the idea of a nationalized or single payer healthcare system, there isn’t a great deal of dispute that the fed could tax to provide universal (well, nationwide) healthcare. Roberts fudged a lot, but that point seems valid.

krome on June 29, 2012 at 4:02 PM

Glad the Kraut is not on the Court

AS I hear, the decisions are written as if the minoity decision was originally the majority, and vice versa, implying a last minute switch by Roberts

Some people are talking about the fact Roberts has epilepsy, and requires medication which can cause confusion

I have a friend whom I recently discovered has epilepsy, and although medicine contains the seizures most of the time, the seizures are causing her brain to shrink. She is a good thinker, but that cannot be good for the brain. Recently she had extensive tests to see if a different med could control seizures, and was told only brain surgery, removing the epicenter of the seizures, might help

However there was no guarantee it would work, and a possibility of a stroke paralyzing one side of the body

I want people to consider the fact Roberts has a physical condition that has a potential for worsening. If Roberts became debilitated before next year, Obama would have another appointment and own the court. A live Roberts is preferable to an Obama appointee

When was it Ginsberg was slyly implying the public did not know the half about the coming decision(s)? Who knows, maybe they are sharing meds

There is also the possibility that a Justice, knowing his days were limited, decides to go for broke and do what pleases him

Oh the frailty of the human body and the behaviour of men facing the deep dark void

entagor on June 29, 2012 at 4:05 PM

Instead of imposing federal mandates in areas outside of actual interstate commerce, all Congress has to do is craft them as taxes.

That was the case before this ruling, too. Go read the oral arguments for this case: no one argued that Congress couldn’t pass this as a tax. The argument was that Congress hadn’t passed it as a tax, and therefore it was too late to rely on the taxing power.

So no, Roberts didn’t give the left anything with that one.

Greg Q on June 29, 2012 at 4:38 PM

…my gawd…everybody is nucking futs!

KOOLAID2 on June 29, 2012 at 4:40 PM

entagor on June 29, 2012 at 4:05 PM

So you’re saying the more your brain shrinks the more liberal you become?

kbTexan on June 29, 2012 at 4:56 PM

The mighty hammer missed the nail on this one.

AshleyTKing on June 29, 2012 at 4:57 PM

Why should Texas have to be subject to ObamaTax when Maine, and NH have been exempt from portions???

Weight of Glory on June 29, 2012 at 12:52 PM

Yes. Big trouble ahead for the O-tax.

AshleyTKing on June 29, 2012 at 5:03 PM

Finesse or not, it is NOT the duty of SCOTUS to re-write bad legislation.

As for ‘the reputation of the court’…..how about HONESTY?

People will always rail when a decision isn’t made in their favor. You’ll notice that the USUAL FOUR went their liberal way. But it’s always ‘the conservatives’ who have to bend.

BS!

GarandFan on June 29, 2012 at 5:24 PM

Winning elections isn’t going to do it for us.

Republicans have held the executive branch 20 out of the last 32 years; we have a putative conservative majority on the court, and yet here we are still losing cases like Obamacare.

All of our ‘wins’ seem to be super secret long game wins, while the left keeps winning the high visibility short game wins, and guess what? The country is inexorably marching towards socialism, statism, and tyranny.

The only way to turn this around is to amend the Constitution. We need to start by throwing out the 16th and 17th amendments. Also, we need to throw out the commerce clause. There is no reason for the federal government to regulate commerce anymore, interstate or not. In this global, interconnected age, no US state is going to engage in a trade war with another US state. Finally, we need an amendment to define life as begining at conception.

That is a tough hill to climb, but I see it as the only alternative to bankruptcy and dissolution of the US. There is no politician that can roll back the tide of statism. We have to set our sites on amending the Constitution to weaken the federal government and strengthen the individual and the state.

bitsy on June 29, 2012 at 5:31 PM

As for ‘the reputation of the court’…..how about HONESTY?

It’s pretty sad when the reputation of the court trumps the responsibility of the court.

John Roberts knows that Obamacare is not a tax. He called it one anyway, in order

As for his “constitutional finesse,” that isn’t worth the paper its printed on. Not one Justice or even inferior court judge will pay any regard to the precedent, and the next time it comes up, it will be overturned 5-4. Precedent and stare decisis is only important to Democrats when a Republican justice is up for nomination or abortion is before the court.

For God’s sake, not a single liberal justice joined with Roberts on his Commerce Clause finding, even though he was selling them the most important vote in the history of everything in exchange. The precedent is nothing but fodder for sock-sniffing RINOs like Krauthammer and David Frum. Not even AP is impressed by it.

HitNRun on June 29, 2012 at 5:38 PM

John Roberts knows that Obamacare is not a tax. He called it one anyway, in order

That’s supposed to end “in order to establish an opinion that would cease the barrage of scolding in the newspapers he reads. This is why liberals use these tactics. Sometimes, they work and the subject caves.”

HitNRun on June 29, 2012 at 5:41 PM

I’ve got great respect for Krauthammer as well. But I also disagree with him close to 20% of the I would guess. Same for George Will and many other voices. That said, even when disagreeing, I always find that they enlarge and enrich the debate :-)

MJBrutus on June 29, 2012 at 5:48 PM

All of our ‘wins’ seem to be super secret long game wins, while the left keeps winning the high visibility short game wins, and guess what? The country is inexorably marching towards socialism, statism, and tyranny.
bitsy on June 29, 2012 at 5:31 PM

What wins have we had? We are always on defense and never seem to be able to muster the courage to reverse the left’s gains. In the meantime, the left waits patiently for the next opening and secures something that furthers their agenda. Our time comes and we do…nothing of importance other than to maintain the status quo as it exists at that time, portraying it as a victory in that things haven’t gotten worse. Something more than amending the constitution may be necessary in order to keep the left’s kakistocratic boots off our necks.

yobobbyb on June 29, 2012 at 5:53 PM

This is a load of BS. Read Mark Levin’s take on this whole thing. There is no bright side in this decision.

-burn8

burn8 on June 29, 2012 at 6:23 PM

People can “fight the good fight” against the Supreme Court, and it won’t change the decision.

Once everybody decides to “fight” Obama and Senate Democrats, we can get to the business at hand.

RADIOONE on June 29, 2012 at 6:28 PM

Maybe I’m nuts but I see more positives in this ruling than negatives…IF….people get off their arses this November. That means you need to talk to everyone and anyone around you to make sure they know who did this to us (liberals that is) and explain the progressives future plans for America. Then dissuade them from supporting those that would carelessly (or purposefully) endanger our well being as progressives want to, and are doing.

You not up for that? Well, then I guess you’ll accept obamacare and whatever else this jackass and his goose-steppers want to do to us.

Wolfmoon on June 29, 2012 at 6:32 PM

He took a simple legal issue and fuc*ked it up beyond all recognition, in the interest of public opinion.

Epic fail.

Jaibones on June 29, 2012 at 3:33 PM

Yep. Roberts really screwed this case up and in spectacular fashion, too. He, like Krauthammer, is trying to be too cute and clever about this. Roberts should of just signed on to Scalia’s opinion and moved on.

I still have the highest regard for Krauthammer. I don’t always agree with him but his arguments are usually well reasoned and occasionally funny. That said, he really should of ran this article before an attorney before he published it because it is based on a legal error.

I’m sure if I offered my opinion about the apparent schizophrenia of the Chief Justice, Charles would tell me to consult a psychiatrist first.

Captain Kirock on June 29, 2012 at 6:34 PM

Roberts has ripped his mask off and shown the world he is an utter scoff law. He has beclowned himself and his rep will never recover. Roberts has now lit off a war that isn’t a shooting war yet, but if the progtards can’t get basck in their cage, we may end up with a true civil war on our hands.

Krauthammer is also an idiot. He was a libtard and has never fully recovered. We have others like him flaoting around such as David Horowitz who can’t be trusted either.

Quartermaster on June 29, 2012 at 6:50 PM

yes, like doing a a delicate operation on a brain tumor with a chainsaw- “finesse”.

mittens on June 29, 2012 at 6:59 PM

Kraut shouldn’t have stopped taking his meds.

As they say, Keep quiet and let others think you’re dumb, or speak up and prove it.

Enough with the GOP spin on this disaster. Nowhere in the Constitution does it say SCOTUS can create a TAX, out of a document that makes sure word TAX does not feature.

Kraut, like every other GOP hack out there, should just shut the hell up instead of making it more painful for the rest of us by spinning more lies and excuses.

Even oppressive liberal countries such as Cuba/Russia/North Korea do not tax their citizens for NOT DOING something, this is the first time in history a non-action is met with a TAX.

Kraut, just shut the hell up.

riddick on June 29, 2012 at 7:01 PM

The law stands, thus obviating any charge that a partisan court overturned duly passed legislation.

Way to let the liberal media control the narrative and shape your opinion, Khammer. I love ya, but sometimes it’s like, come on…

GabeQuincy on June 29, 2012 at 7:58 PM

Robert’s Meds messed with his head , or he’s an a-hole!

MCGIRV on June 29, 2012 at 8:00 PM

It was the reminder that elections matter. The only cure for ObamaCare is a defeat for Barack Obama and Democrats in November.

Oh, God – *that* bullsqueeze again.

Midas on June 29, 2012 at 8:09 PM

I blame bush.

Garym on June 29, 2012 at 8:18 PM

Why should Texas have to be subject to ObamaTax when Maine, and NH have been exempt from portions???

Weight of Glory on June 29, 2012 at 12:52 PM

Yes. Big trouble ahead for the O-tax.

AshleyTKing on June 29, 2012 at 5:03 PM

I thought that too, before yesterday.

Today, not so much. Common sense, actual understanding of the way it’s *supposed* to work Constitutionally-speaking – these things no longer matter.

What matters is that politicians can do whatever the hell they want, elections *don’t* make a difference, the Constitution is a dead letter, and we’re living in an active, hungry, growing tyranny.

Seriously – it’s like expecting terrorists to behave rationally, civilly and humanely. You have to get past that, because it’s not their reality.

We can’t continue to expect politicians – *any* of them – to behave as they’re supposed to, as the Constitution says they shall, as you and I would. We can’t continue to expect elections to make a difference when a) they’re subject to so much fraud, and b) politicians don’t do what they’re supposed to. We can’t continue to say, “but, but… that’s un-Constitutional” and watch while the politicians and courts snicker at how quaint it is that we still believe in that stuff; cause they sure as hell don’t.

Sure, let’s fight like hell to get Obama out of office in the fall, and get more GOP into office. And then watch closely and do *not* be surprised when they do *not* repeal Obamacare; when they do *not* undertake entitlement reform; when they do *not* materially curtail spending to control the deficit.

You *know* this is what will happen because you’ve *seen* it time and time again.

And in four years when you’re pissed and not going to take it anymore, the GOP and bootlicking supporters will deride you for saying you’re not going to vote for their sh1tty prevaricating candidates anymore – after all, that really means you’re “voting for the liberal!!!1!eleventy!”

*pffft*

Midas on June 29, 2012 at 8:22 PM

Kraut has gone the way of celebrity over substance.

His opining last night post SCOTUS decision, combined with the Holder result says so.

I still think he is a brilliant and brave man to overcome his physical issues… but as to a staunch conservative who is right on the money, not so much. I am more surprised, being he has a PhD in psychiatry – and seems to miss the mark on basic human behaviors and decisions.

Odie1941 on June 29, 2012 at 8:31 PM

Krauthammer: Roberts pulled off one of the great constitutional finesses of all time

Roberts serves up a crap sandwich, Krauthammer tries to convince me it’s actually ham.

No Thanks.

rukiddingme on June 29, 2012 at 8:48 PM

Robert’s nuanced rationale in the ‘call-it-a-tax-and-it’s-okay’ changes nothing; the mandate is intact and Obamacare will force Americans to subsidize bad behavior under penalty of law, administered by legions of IRS agents. The only ‘silver lining’ will be yet another lie by this administration that those making under $250,000 dollars would not see their taxes go up but, the irony has always been his tortured reasoning that through oppressive taxation he must destroy the middle class to save it.

LizardLips on June 29, 2012 at 8:53 PM

There is only one place where freedom and a proper constitutional balance can be restored: the ballot box.

Why in the hell would lawlessness stop at the 3 branches?

Digital ballot boxes are now entirely fungible with whatever series of zeros and ones those in control decide to choose.

Difficultas_Est_Imperium on June 29, 2012 at 8:56 PM

I think Charles is right on this. Too many people, TAKING A SECOND LOOK, at the decision are seeing that Roberts “judo flipped” the Left on this.

Listen, as Krauthammer put it, Roberts believes in two things. 1. Judicial activism is wrong. 2. The Constitution AND the branches created by it must be respected.

He is also a conservative by nature. So how does he square this?

Much liked Citizen United case and McCain’s idiotic bill, he follows the following principles.

1. People have the Constitutional right to vote in idiots, radicals and greedy fools.

2. Those IRGFs have the Constitutional right to create stupid, horrible, unworkable, damaging laws. (Honestly, done all the time at all levels right?)

3. The Supreme Court is NOT a body that gives opinions based on moral or common sense judgments. They umpire, not pick and choose.

4. However, once a bad, but constitutional, law HARMS the constitutional rights of a citizen, the SP can and will step in and find the ACT of the harm unconstitutional (thus making the law now unconstitutional).

Yes, a long way around to get to close place, but it eliminates what we all complain about, especially over in the ninth circuit, which is judges applying their idea of social justice or morality.

Now, will it work? Only if Obama and the House follow the law.

Roberts made it a tax and kicked the responsibility of creating a taxing authority for that bill back into the laps of Congress- where it belonged and where the Dems tried to pass it off to HHS with some inventive bill writing. Now they deal with a 500 billion dollar tax on VOTING citizens without the cover of a bureaucracy.

Roberts gave us a HUGE hanging curve by pulling back the curtain and revealing what this is, not what Obama said it was. Obama claimed it to be a charmed unicorn farting magical fairy dust.

Roberts revealed it was a ugly Frankenstein monster hellbent on destroying us- after robbing us blind.

He took the concept of mandates and commerce clause and B-slapped it back about fifty years. Good job.

Here is my full take at my site.

http://truthandcommonsense.com/2012/06/29/judge-roberts-gives-obama-a-chinese-curse-may-you-live-in-interesting-times-what-conservatives-missed-in-the-ruling/

He did brilliantly CONSIDERING his situation. I would have been with the conservatives, but then again, I would be against anything post Teddy Roosevelt, so I may be out of step a little.

But that doesn’t mean I don’t get what he did or admire him for doing it. Sometimes you don’t one punch knock out the other guy. You confuse him, and then beat him into submission over several rounds with well placed effective blows.

Or you just flip his over eager rear onto his head and watch the birdies fly around it.

archer52 on June 29, 2012 at 9:16 PM

Under Islam, non-believers (Dhimmi’s) pay a tax for not buying into Islam (jizya).

Under Obamacare, you now get to pay a tax for not buying into Obamacare.

Makes perfect sense if the SCOTUS is now going by sharia law…

bofh on June 29, 2012 at 9:24 PM

Amazing how Kraut’s opinion has changed 180 degrees, INCREDIBLY SO, since his bleeting in print this morning for his appearance on Hannity this afternoon. I am betting he does read online blogs.

Still, a major ass wipe in my book. And just another cog in the now irrelevant RINO conclave.

I hope Fox News dumps O’Really? and hires Ingraham to replace the queen, between the two she’s the only one with balls, its seems, as well as sharp mind to put liberal morons in the spot.

riddick on June 29, 2012 at 10:21 PM

archer52 on June 29, 2012 at 9:16 PM

You obviously missed his appearance on Hannity today.

Stop believing and re-posting BS, even Kraut back tracked on his stupidity.

riddick on June 29, 2012 at 10:49 PM

Pretty bad stuff for Kraut. I’m glad he’s since walked it back.

archer52, I totally disagree. Here’s what I left in the comments at the WaPo:

“That’s undoubtedly what Roberts is telling the nation: Your job, not mine. I won’t make it easy for you.”

He’s wrong, then. Sorry Charles, but you’re wrong, too. John Roberts took the politically safe route when politics is the last thing he should be considering. His hypocritical lecturing was particularly galling, coming as it did after he exerted the very authority he claimed the Court could not claim: the power to write legislation.

The Roberts Doctrine seems to be thus: the Court should go to great lengths to help any and all legislation “pass” constitutional muster, indeed by any means necessary because people deserve the fruit of the leaders they elect. Or put simply, tyranny of the majority shall rule the day. John Roberts won’t make it easy for us, but he will damned sure make it easy for John Roberts.

No one said the job of Supreme Court Justice of the United States was easy, nor should it be. We spend valuable public hours and treasure vetting potential Justices not so they might make it hard on citizens, but so they will be the final bulwark against unconstitutional appropriation of power. Difficulty is a feature, not a bug and pusillanimity is not trait we should be celebrating in our Chief Justice.

holygoat on June 30, 2012 at 12:33 AM

To quote another Charles:

Winning!!

There Goes The Neighborhood on June 30, 2012 at 1:07 AM

if there is not a massive change in the makeup of the Senate and the un-election of this social engineering, constitution usurping oneness then I fear we will really be down the road of no return.

Then I must for my own sanity become a legal expat who will continue to pay federal income taxes.
I will live my last years that God grants me in relative solitude from any mentioning of depressing US news. I will continue to vote and pray for fiscal sanity and the following of the US Constituion to return.

losarkos on June 30, 2012 at 1:08 AM

I have a suspicion that, if Roberts had written an opinion stating that ObamaCare could be passed under the tax provision, but overturning the law and telling Congress they would have to create new legislation based on the taxing power to create a new version, people would not have reacted so badly to the opinion. But to make a case for it as a tax when the bill as passed called it a penalty makes it look like he was determined to rationalize a way to uphold the bill.

Honestly, if I wanted to hear sophistry and shady reasoning to rationalize a preconceived conclusion, I could listen to Chris Matthews or dozens of other liberal pundits.

There Goes The Neighborhood on June 30, 2012 at 1:20 AM

So when Obama manufactures a crisis and issues an executive order or through an EPA regulation, “The Responsible Energy Act” will force homeowners to place solar panels on their roof or pay a mandate tax. When the Act makes its way to the Supreme Court, Judge Roberts will have to be consistent and uphold it as a “solar panel non-compliance tax”.

Decoski on June 30, 2012 at 1:34 AM

I hope Fox News dumps O’Really? and hires Ingraham to replace the queen, between the two she’s the only one with balls, its seems, as well as sharp mind to put liberal morons in the spot.

riddick on June 29, 2012 at 10:21 PM

Me too! I will then start watching that time slot. O’Reilly is an arrogant blowhard that gets it wrong half the time.

Decoski on June 30, 2012 at 1:37 AM

I’m afraid that a government program, once started, is almost impossible to stop. (See Ronald Reagan’s definition of eternal life.) I hope we turn this around but if we don’t we’ll become like the socialized countries to the south.

Mojave Mark on June 30, 2012 at 2:59 AM

holygoat on June 30, 2012 at 12:33 AM

Excellent comment. Wasted at the WaPo, but a beauty. Thanks for reposting it here.

ThePrimordialOrderedPair on June 30, 2012 at 4:33 AM

I have to say I agree with Kraut on this. It’s probably the best outcome. It puts the ball firmly back in Conservative pols’ court, where it belongs. It’s not up to judges to de-legislate from the bench. This crapola sandwich needs to be overturned in Congress.

I also think it puts the spotlight squarely on the iniquitous tax. ObamaCare is now a tax on poor people … (ie those who can’t afford healthcare …)

Now all we’ll hear from now to November is the ObamaCare Tax …

Hope on June 30, 2012 at 5:13 AM

He did brilliantly CONSIDERING his situation. I would have been with the conservatives, but then again, I would be against anything post Teddy Roosevelt, so I may be out of step a little.

But that doesn’t mean I don’t get what he did or admire him for doing it. Sometimes you don’t one punch knock out the other guy. You confuse him, and then beat him into submission over several rounds with well placed effective blows.

Or you just flip his over eager rear onto his head and watch the birdies fly around it.

archer52 on June 29, 2012 at 9:16 PM

With all due respect, what the Hell are you talking about? Good God man, crack open a Con Law book and learn something.

Roberts aint some parliamentarian umpire who gets to call balls and strikes every inning. He’s a Supreme Court Justice who can only address the cases that come before him, WHEN they come before him.

How often do MAJOR cases like this come before the Court? Once every 5 years? 10 years? You got to swing for the fences when a big fat soft ball comes over the plate, not try to be cute and bunt.

Roberts completely screwed the pooch here. He got too cute for his own good. He decided, on his own, that this was a tax, something that was NOT argued at oral argument and something his other justices did not agree on.

Hopefully he realizes what a fool he has made of himself and spends the rest of his tenure making up for it. Otherwise he is a complete jackass.

Captain Kirock on June 30, 2012 at 5:19 AM

I completely disagree with Morrissey, and find Krauthammer and Hindraker’s opinions to be the MORE CONSERVATIVE positions.

Look, the lesson here is clear: Roberts WAS upholding the Constitution. His point–the conservative point–in this lesson is that Americans have a part to play in upholding the Constitution and we aren’t upholding our end of this bargain by asking the Court to “vote for us.”

Our democratic republic depends on voters–and we aren’t voting to the tune of nearly 50% in this country–and he has left it up to us to decide on the tax being summarily imposed on us by our elected representatives in government.

The most conservative position possible is the position John Roberts took in his ruling. You may not LIKE THAT, but you must learn to respect it; otherwise, you are undermining your own ideology! Roberts has gently but firmly pointed this out to you. Either learn the lesson or doom your own arguments.

mountainaires on June 30, 2012 at 5:20 AM

Look, the lesson here is clear: Roberts WAS upholding the Constitution. His point–the conservative point–in this lesson is that Americans have a part to play in upholding the Constitution and we aren’t upholding our end of this bargain by asking the Court to “vote for us.” mountainaires on June 30, 2012 at 5:20 AM

Complete and utter nonsense.

Roberts’ job is not to inspire us as voters.

His job is to rule on the Constitutionality and legality of the cases and laws that come before him.

He is supposed to be a judge, not a f*cking cheerleader.

Sorry for the vulgarity, but all these people trying to attribute some Byzantine motives to Roberts’ opinion do not understand how the Supreme Court, or the Constitution, operates.

Captain Kirock on June 30, 2012 at 5:46 AM

Our democratic republic depends on voters

mountainaires on June 30, 2012 at 5:20 AM

What sort of nation do you think you live in? We have a CONSTITUTIONAL Republic for which the CONSTITUTION is the supreme law of the land, no matter what the voters want. It limits the whims of the voters in the same way and for the same reason that it limits the powers of the branches of government.

If you want to live in a Democracy where the whim of the voters rules all, move to one – though Benedict Roberts has single-handedly given formal birth to the American Socialist Superstate, so you have just gotten your wish as our Constitutional Republic is no more. Congratulations.

ThePrimordialOrderedPair on June 30, 2012 at 6:46 AM

Ann Althouse takes the Chief Justice to task for not addressing the fact that the government lied to the American people about it’s plan for the new TAX.

But in so doing, Chief Justice John Roberts’ ruling on ObamaTax explicitly delineates the difference between ObamaCare and RomneyCare–democratic accountability–thus giving conservatives a key argument in this campaign, using Roberts’ ruling:

“Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system.”

But read the whole thing. The fact is, ObamaCare was designed as a TAX from the very beginning. That Obama and the Democrats called it a “penalty” was a part of their plan all along, but Roberts ruled that it is, in fact, nothing more than a tax, and was purposefully so:

The Democrats lied to Americans in order to raise their taxes; it was never about health care. It was about REVENUES.

http://althouse.blogspot.com/2012/06/how-chief-justice-roberts-reenvisioned.html

mountainaires on June 30, 2012 at 6:55 AM

Captain Kirock on June 30, 2012 at 5:46 AM

What is utter nonsense is conflating the facts with your wish to make it so. The two do not equate. Deal with it.

mountainaires on June 30, 2012 at 6:57 AM

Also (and the more I think about this the more interesting I think the judgement) he has dispensed Romney from defending his mandate. Romney can hammer relentlessly on the Obama Tax.

Also had the law been struck down the narrative would be on those nasty Republicans against affordable healthcare. No it’s on Obama who has to explain his tax on being alive.

Among other things Roberts has applied Napoleon’s old adage, “Don’t interupt your enemy when they’re making a mistake …” He has given Obama his health care tax. Up to him now to explain that between here and November.

Hope on June 30, 2012 at 7:01 AM

Roberts didn’t pull of diddly squat other than more tyranny. He did what all activist tyrannical judges do, especially those who think their Harvard Law degree qualifies them for genius status. He first rewrote a law to fit what he wanted to rule. He then found, somewhere so he says, a taxing power Congress does not have and wrote his own tax law. Shazam all the DC cocktail circuit and tyrannical ruling class on both sides yell genius. Meanwhile we debate it, go about our daily lives, prepare to vote, while the ruling class prepares to tighten their grip.

bgibbs1000 on June 30, 2012 at 10:19 AM

To Capt K.

I don’t need to read con law to understand a few principles going on here.

1. We conservatives complain that we don’t like activist judges- unless apparently now- they are OUR activist judges. Swinging for the fence implies his job was to hit something out of the park. That is NOT his job. His job is to simply decide if a law is constitutional or not. (Yes h did some twisting but why? Read on)

2. It drives me crazy that all of a sudden we are offended about nationalized healthcare and the fact the government can force us to give it money for something IT considers is a “national need”. Yet, every paycheck we do just that! Social Security, Medicare, if you are a business unemployment insurance. There are tons of examples where we have allowed our elected representatives take from us our money, under the threat of fines or imprisonment. If you die before you use Social Security or Medicare or decide not to participate do you get your money back? If the business never fires anyone do they get their money back?

3. Roberts lives in that world. He knows arguing that Obamatax (as I now called it thanks to Roberts) can’t be implemented because it is a badly written law or that it offends a portion of the populace is not a constitutional argument. (agreed it should be but I’m VERY conservative and not a judge)

Remember, there is a pretty large portion of Americans who LIKE this law. So which side should he please- which is what you are asking him to do.

4. Now remember, I would have thrown it out. But I also am pre-Teddy Roosevelt in the concept of what the federal government should or should not be allowed to do. BUT that doesn’t mean I don’t get what he did. He took a politically motivated, badly written, foolish, cobbled together piece of crap and made the Left eat it. They “own it” now. AND he exposed (by letting the conservative wing openly scorn the law) it for what it is. That will take time to permeate through the minds of the populace.

For example, Rubio was brilliant in his response by pointing out the SP ruling made millions of young people targets of the IRS.(VP material regardless of his experience level. He’s that good.)

Let the kids realize this for a month or two and see how excited they get for Obama. But in reality, they were ALWAYS going to be targets, it was just hidden by the Left. Now by not throwing the law back in the face of Congress and Obama-giving Obama a political tool- Roberts said the following.

1. It’s your ugly baby, deal with it.
2. You can’t mandate funding for it. You have to find a taxing authority for 500 billion dollars. (In the midst of a citizen revolt over taxes)
3. You can’t use the commerce clause. (understand, if the law gets rejected on the mandate or the reason “it is a bad law that reaches too far” and the Left doesn’t get exposed at all. They just play victims.)
4. There is no such thing as a mandate from an executive branch that can act like a tax. (BIG)
5. (and maybe most important because it gives courage to States) The Federal government cannot fine or punish states for not instituting Obamatax. Already Louisiana told the feds to kiss their collective rears. Others will follow.

Why are all these things important and maybe why Roberts twisted his duty a little to get there?

It is constitutional for asses to write harmful laws…as long as they don’t harm anyone with them. The second a state or a person is harmed by the actions of the federal government, the resulting lawsuit will be heard and ruled on.

Imagine if a person gets “taxed” for no activity- against the ruling remember? Then he goes before the SP and says “This is bull! Look what they did!” The SP says, “Hey told you it had to happen a certain way or its no good. It is out!”

This would be similar to the way the SP handled McCain and the campaign finance reform. The rule is this at the risk of sounding repetitive.

– Duly elected politicians representing their people’s will (The assumption is if they aren’t we throw them out- it is how it works. Roberts can’t change the Constitution!) can write stupid harmful laws. BUT as long as that law doesn’t harm anyone directly (You have to have a victim in today’s system) it is constitutional. But harm someone and the ACT of the offense it unconstitutional. That throws it all out.

Try this.

Obamatax is a bad doctor. Last in class, stupid as a bag of hammers, all thumbs, BUT he did pass the class, did he residency, and is licensed. He gets to be a “doctor” as long as he doesn’t harm anyone. However, the minute he harms someone, that case is reviewed and by his actions he looses his license and is barred from harming anyone else.

I know that sounds stupid dealing with the SP and the Constitution. But that is how today’s judges look at things. Acting before the harm, on the chance or opinion that harm is going to happen, is activism. Roberts doesn’t think judges should do that.

We’ll see if Obama’s people ignore the ruling and press on- immediate lawsuits and B-slapping by SP.

We’ll see if the conservatives, Romney and the Republicans hit the hanging curve he just threw them. Again courage and agility are not strong points for the Republicans, BUT that isn’t Roberts’ problem is it? (Hint- it is our problem. We elected them.)

Here is one opportunity I noted today- add to the amendment the caveat that all federal employees INCLUDING CONGRESS, must partake in the end result of Obamatax and not be exempted.

No two tiered system with poor people and death panels on one level, while the elites get great healthcare on the other.

We aren’t Europe dammit!

See how the Dems handle that!

http://truthandcommonsense.com/2012/06/30/the-house-has-a-chance-to-make-a-big-statement-when-revisiting-obama-tax-stop-their-own-exemptions/

Hey, I could be wrong, but that was way too much work just to rubber stamp the progressive agenda. He is up to something.

archer52 on June 30, 2012 at 10:47 AM

The only cure for ObamaCare is a defeat for Barack Obama and Democrats in November.

Please, overpaid media types, tell me something I don’t know.

Your job is to inform–not rehash the obvious or marvel at the deviousness of modern politics (Krauthammer).

Give the devil his due, but please offer a ray of hope for those who still love freedom.

Stepan on June 30, 2012 at 12:03 PM

Obama is going to win. Everything is going his way at the moment. We have to hope and pray for economic collapse, and even then, he’d probably win.

mboyle1988 on June 30, 2012 at 12:08 PM

Anyone who thinks that the Roberts position is the conservative position simply wrong. Reading the word “tax” where it clearly says “mandate” and “penalty” is not a strict constructionalist reading, it is rewriting a law to say something it does not say, but that you wish it to say. Sending this law back to Congress to address the unconstitutional provision — the commerce clause controlled mandate — was the only conservative, constructionalist position.

The Chief Justice’s ruling was not only a bad ruling, it was the worst possible ruling going forward, as he has effectively broadened the taxing ability of Congress by removing the political implications of new taxes simply by calling them something else, while leaving the commerce clause unrestrained by issuing mere, uncontrolling dicta rather than forming official Court opinion. If striking down unconstitutional laws is not the purview of the SCOTUS, what exactly is their purpose? Is Marbury v Madison no longer controlling?

Bottom line? Congress just gained broad new taxing powers while having the yoke of political pressure removed from enacting them. As a bonus, the commerce clause remains just as broad as ever. This is not a win for judicial restraint, strict construtionalism or conservatism. This is a rout in favor of judicial activism, the concept of the “living constitution and Progressivism in America.

holygoat on June 30, 2012 at 2:50 PM

I thought that too, before yesterday.

Today, not so much. Common sense, actual understanding of the way it’s *supposed* to work Constitutionally-speaking – these things no longer matter.

What matters is that politicians can do whatever the hell they want, elections *don’t* make a difference, the Constitution is a dead letter, and we’re living in an active, hungry, growing tyranny.

Seriously – it’s like expecting terrorists to behave rationally, civilly and humanely. You have to get past that, because it’s not their reality.

We can’t continue to expect politicians – *any* of them – to behave as they’re supposed to, as the Constitution says they shall, as you and I would. We can’t continue to expect elections to make a difference when a) they’re subject to so much fraud, and b) politicians don’t do what they’re supposed to. We can’t continue to say, “but, but… that’s un-Constitutional” and watch while the politicians and courts snicker at how quaint it is that we still believe in that stuff; cause they sure as hell don’t.

Sure, let’s fight like hell to get Obama out of office in the fall, and get more GOP into office. And then watch closely and do *not* be surprised when they do *not* repeal Obamacare; when they do *not* undertake entitlement reform; when they do *not* materially curtail spending to control the deficit.

You *know* this is what will happen because you’ve *seen* it time and time again.

And in four years when you’re pissed and not going to take it anymore, the GOP and bootlicking supporters will deride you for saying you’re not going to vote for their sh1tty prevaricating candidates anymore – after all, that really means you’re “voting for the liberal!!!1!eleventy!”

*pffft*

Midas on June 29, 2012 at 8:22 PM

Lots of truth in what you said midas.
Many of the politicrats have lost their way.
But then that’s why we are here to light those fires under each and every politicrat that we want to influcene and keep them lit until the chair is so hot they have to take a look at who is setting those fires and what it takes to get the heat turned down.
It’s all about the heat you see…..
RG

rodguy911 on July 1, 2012 at 1:33 PM

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