Better late than never?

posted at 11:01 am on July 5, 2012 by Ed Morrissey

Now that Mitt Romney has adopted the “It’s a tax!” strategy that the RNC and Republicans adopted after the Supreme Court decision on ObamaCare, will all be forgiven on the Right? Not as far as the Wall Street Journal is concerned, which slammed Romney for campaign malpractice later the same day:

In a stroke, the Romney campaign contradicted Republicans throughout the country who had used the Chief Justice’s opinion to declare accurately that Mr. Obama had raised taxes on the middle class. Three-quarters of those who will pay the mandate tax will make less than $120,000 a year, according to the Congressional Budget Office. The Romney high command has muddied the tax issue in a way that will help Mr. Obama’s claims that he is merely taxing rich folks like Mr. Romney. And it has made it that much harder for Republicans to again turn ObamaCare into the winning issue it was in 2010.

Why make such an unforced error? Because it fits with Mr. Romney’s fear of being labeled a flip-flopper, as if that is worse than confusing voters about the tax and health-care issues. Mr. Romney favored the individual mandate as part of his reform in Massachusetts, and as we’ve said from the beginning of his candidacy his failure to admit that mistake makes him less able to carry the anti-ObamaCare case to voters. …

This latest mistake is of a piece with the campaign’s insular staff and strategy that are slowly squandering an historic opportunity. Mr. Obama is being hurt by an economic recovery that is weakening for the third time in three years. But Mr. Romney hasn’t been able to take advantage, and if anything he is losing ground.

Losing ground?  The WSJ doesn’t provide any data to support that contention, and the polls thus far show no sign of a significant bump for Obama from the Supreme Court ruling.

The Washington Post’s Chris Cillizza and Aaron Blake believe that the rest of the Right might be more forgiving, and outline the risks and reward for Romney in his change in tactics:

“The most important thing is that the candidate has it right,” said one senior Republican operative granted anonymity to speak candidly about his party’s nominee. “It’s a tax and should be characterized as such. I don’t know why anyone else would have said otherwise. Perhaps some were overthinking how it would be compared to what he did in Massachusetts.”

The political reward of Romney’s new — or, at the very least, clarified — position on the health care ruling is obvious. Republicans have long scored political points by bashing Democrats as lovers of big government who want to finance growth in the size of the bureaucracy by raising taxes. That the key provision of Obama’s health care law was upheld due to a tax provision, then, fits perfectly into an advantageous political frame for Romney — and Republicans more broadly.

The political risk is also apparent. One of Romney’s biggest weaknesses as a politician is that people simply don’t believe he has a core set of convictions that guide him. The flip-flopper label went a long way in costing him the 2008 Republican presidential nomination and was at the center of his weaknesses in this primary fight.

Not surprisingly, Democrats went after the flip-flopper angle hard on Wednesday.

“He threw his top aide Eric Fehrnstrom under the bus by changing his campaign’s position and calling the free rider penalty in the president’s health care law — which requires those who can afford it to buy insurance — a tax,” said Obama campaign spokesman Danny Kanner.

Well, I wish them the best of luck in selling this as a Republican flip-flop.  The RNC got there first and best by highlighting Obama’s campaign pledge not to hike taxes and his argument with ABC’s George Stephanopoulos, in which he denied that ObamaCare was a tax, but celebrated with other Democrats when the court upheld it on that basis:

Combine that with the last 30 seconds or so of this debate between Fox’s Chris Wallace and Obama chief of staff Jack Lew, which features Obama’s own Solicitor General arguing to the Supreme Court in March that they had to uphold the individual mandate as a tax, and the flip-flop argument becomes one that Romney would love to have:

Conservatives hammered Romney for his initial strategy in dealing with ObamaCare, but it may not have been as bad as they thought — at least on paper. In my column for The Fiscal Times today, I make the argument that conservatives were reacting more to the Ghosts of Campaigns Past, and that Team Romney’s approach may have been a good idea, had it been executed a little more expertly:

It’s not the first time [Eric] Fehrnstrom had created a controversy for Romney.  During the primary campaign, Fehrnstrom told CNN that pledges made in primary campaigns could be set aside during general elections, “almost like an Etch-a-Sketch.  You can shake it up and we start all over again.”  In this case, though, Fehrnstrom was trying to protect Romney from the logical conclusion of an attack on Obamacare’s mandate as a tax, which is that Romney’s health-care reform mandate in Massachusetts would then also have to be considered a tax.  Consider what exactly Fehrnstrom told NBC’s Chuck Todd:

“Chuck, the governor has consistently described the mandate in Massachusetts as a penalty. Let’s take a step back and look at what the president has said about Obamacare. In order to get it past the Congress, he insisted, publicly and to the members of Congress, that the mandate was not a tax. After it passed the Congress, he sent his Solicitor General up to the Supreme Court to argue that it was a tax.”

In other words, the Romney campaign had decided to hit Obama over his hypocrisy in arguing both ways on the mandate as a tax – one way in public, and another at the Supreme Court – rather than as a tax raiser.  It also put Romney in position of siding with the four conservative jurists who insisted that the entire law needed to be thrown out and that the tax argument was decided incorrectly; Fehrnstrom told Todd in the same interview that Romney “agreed with the dissent that was written by Justice Scalia.”  Had the strategy been executed more deftly, it would have kept the Romneycare issue out of the way without stepping on the “It’s a tax!” argument from other Republicans.  That might have been a clever plan, had Fehrnstrom not given the specific quote that “the mandate was not a tax.”

Sensing the rift opening on the Right, Romney moved quickly to shift his strategy.  By yesterday morning, Romney told CBS, “The majority of the court said it’s a tax, and therefore it is a tax.”  The speed with which Romney adjusted his attack is consistent with the rapid response efforts of Team Romney over the last two months, which had until now won praise from conservatives as a huge improvement over the relative lack of fight from the 2008 campaign of John McCain.

The need to tread carefully for lines of attack on ObamaCare is already well-known to Republicans.  Romney got attacked repeatedly for his own health-care mandate in Massachusetts during the Republican primary, but he responded well enough to win the nomination — mainly by focusing on jobs and the economy while promising a full repeal of ObamaCare.  The campaign’s effort to move past a potentially troublesome debate on the nature of the mandate to focus on the hypocrisy and deception conducted by Democrats to get ObamaCare passed made a lot of sense, but a fumbled delivery and a highly-sensitive Republican base now makes it an untenable strategy.

That’s no great loss — as I said, the risks for Romney on the “It’s a tax!” argument are pretty low anyway — but it’s also clear that Romney didn’t intend on shying away from the fight.  The bigger lesson might be less that Romney’s team (that conservatives had praised for two months for its willingness to fight the Obama campaign) needs to change, than the need for conservatives not to be so quick to hit the panic button over one response.

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Ultimately, conservatives want reassurance that Romney and the Republican party leadership isn’t going to go wobbly on policy, and they apparently haven’t gotten it.

Doomberg on July 5, 2012 at 2:06 PM

Rep. Paul Ryan (R-WI), chair of the House Budget Committee–and potential running mate of Republican presidential hopeful Mitt Romney–told Breitbart News this week that the party’s leaders are “absolutely” committed to repealing Obamacare.

“It would have been nice for the Supreme Court to repeal it for us,” he said, “but it’s no harder today than it was the day before the decision. We win, we repeal. It’s just that simple.”

Ryan, speaking exclusively with Breitbart News, added that there was no disagreement about repealing Obamacare among the various Republican leaders, or with the Romney campaign. “Not in any of the meetings I have been having,” he said.

davidk on July 5, 2012 at 3:04 PM

exactly why I’m sick at my stomach over the SC ruling. I’m on Medicare, just completed treatment for breast cancer, and shortly my healthcare will become limited because of my age, while illegal aliens will get free unlimited
medical care. Something is very wrong in this country.

silvernana on July 5, 2012 at 2:24 PM

Dear silvernana, it is my utmost hope that you continue to receive treatment and that you get better. All the very best to you.

It is so disgusting to be a second rate citizen, to have two tiers of people in the USA of today.

Illegals get illegal tax refunds, without paying taxes, by the billions. They get stopped on the roads and are released, just for speaking Spanish, legal or not. They have free hellthcare, as you wrote.

Holder is considering the legal voters terrorists, as the biggest cop in the land, when he and his boss s/b impeached.

And these are just a few examples.

In the meanwhile ‘our’ side plays nicey gloves.

I send you a big hug and will pray for you.

Schadenfreude on July 5, 2012 at 3:08 PM

It’s sad that Romney can’t even flip with finesse.

timberline on July 5, 2012 at 3:11 PM

Terrye on July 5, 2012 at 2:59 PM


Roberts changed the text of the law and made it a tax, setting a horrific SC precedent. Period. Basta. No ifs or butts about it.

The commerce clause was only Roberts’ and not the majority of the “conservative justices'”. Don’t kid yourself on this.

Politically, in Machiavelli style, because winning is everything – short of it the Republic will go to Hades exponentially – Mitt should have taken the lemon Roberts handed him on a silver platter and made lemonade out of it. He and his blew it and now we have another etch-a-sketch when obama is an Etch-A-Sketch of the biggest proportions.

Add to that the jet skis picture, when tomorrow the unemployment figures come out…and you have a John Kerry disaster. These were easily avoidable, alas.

Fluffing for Mitt is more disgusting around here than observing the leftist latrine rats.

This race is not about Obama and Romney, it is about the country and the people who want to have jobs and all the rest you know about.

It’s hard to be on the right these days…just that the alternative is a quicker death.

Schadenfreude on July 5, 2012 at 3:15 PM

Roberts changed the text of the law and made it an extra-Constitutional tax, thus setting an horrific precedent in the SC.
. . . .

Fluffing for Mitt from the right is more disgusting than watching the leftist latrine rats around here.

Schadenfreude on July 5, 2012 at 2:40 PM

To the contrary, I’m not fluffing for Mitt, though I do think he’s right on this.

Chief Justice Robert’s opinion was a classic exercise of “judicial restraint” . . . deferring to the decision of two political branches by finding a constitutional ground on which the statute could be upheld.

Consider the following language (without the citations or ancillary matter) taken from Justice Brandeis’ concurring opinion in Ashwander — it is the classic cumulative statement outlining the fundamental grounds for exercises judicial restraint:

. . .
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
. . .
7. “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”
. . . .

Look, I don’t like the effect of Roberts opinion. My own view (which doesn’t matter a whit) is that I believe he could have gone along with the four dissenting conservative justices. But I do think I understand why he found that way.

We conservatives have been complaining about judicial activism for decades. But when the Supreme Court fails, as here, to declare an Act of Congress that we don’t like completely unconstitutional, we should go nuts?

Roberts was not endorsing ObamaCare — but he was implicitly suggesting that the proper way for it’s opponents to undo ObamaCare is through the political process.

Trochilus on July 5, 2012 at 3:21 PM

Um, last I looked, calling the mandate a tax is what got the thing declared Constitutional.

I thought the right was angry at Roberts for declaring the mandate a tax.

By agreeing that the mandate is a penalty, Romney is agreeing with the SCOTUS dissent which declares Obamacare unconstitutional.

The point is not to agree the mandate is a tax; the point is to point out Obama’s hypocricy. Team Romney is correct; the WSJ is flat out wrong.

BTW, Romney haters. Even those who agree that Obamacare and the mandate are unconstitutional on the Federal level agree that it is justifiable as a state program.

Romney never advocated a Federal version of Romneycare.

He said it could be a model for the states.

If all 50 states implemented a version of Romneycare and its mandate tomorrow, there would be no Constitutional argument against it, whether one called the mandate a penalty, a tax, or a dead fish.

Romney is not the problem. The WSJ and the Republican establishment is.


Mr. Arkadin on July 5, 2012 at 3:23 PM

silvernana on July 5, 2012 at 2:24 PM

How are you feeling? Have you competed radiation?

Cindy Munford on July 5, 2012 at 2:55 PM

Hi Cindy! I have finished my radiation, everything looks good, recent mammos good, and I am working on getting my strength back. Chemo and radiation does a lot of bad things to your body that takes a while to get over. But they say it just takes time. Thanks for asking.

silvernana on July 5, 2012 at 3:24 PM

Chief Justice Robert’s opinion was a classic exercise of “judicial restraint” . . . deferring to the decision of two political branches by finding a constitutional ground on which the statute could be upheld.

Trochilus on July 5, 2012 at 3:21 PM

That’s beyond laughable. There was no Constitutional ground upon which to uphold the criminal law, so Benedict Roberts created one – and in creating that new sort of tax (unheard of in American history) he made a mockery of the Court, our Constitution, and our nation.

Stop trying to find anything correct about his opinion. It was an offense to the intellect and a rape of logic and the Constitution.

ThePrimordialOrderedPair on July 5, 2012 at 3:26 PM

I send you a big hug and will pray for you.

Schadenfreude on July 5, 2012 at 3:08 PM

Oh, that’s so sweet. Thank you! I’ll take all the hugs and prayers I can get. And I agree with all you said.

silvernana on July 5, 2012 at 3:27 PM

Does no one care what is actually in the d@^^ bill and what will happen to our health as a result?
Sara was right! Death panels will be in effect.

How else can you save, unless you abort the babies (and especially ones who have a problem), and kill of all the dead people.

BTW, you all should listen to Micheal Medved now. He is talking about health care.

Bambi on July 5, 2012 at 3:31 PM

Nuts. Read what he said during the interview yesterday!

It is spot on. Please try to understand that the sovereign powers of the states in our system are different than the “LIMITED ENUMERATED POWERS” of the federal government as specified under the Constitution of the United States.

I agree this is spot on and solid rhetoric.

However, he only said this after an uproar from the base basically forced him.

davidk on July 5, 2012 at 3:04 PM

I certainly understand that. However, you may recall the thankfully departed Yasser Arafat’s habit of saying one thing in Arabic and another thing in English. The problem is that every time conservatives start to breathe easier, a Mitch McConnell comes out and says “repeal will be really hard” with the implication that repeal isn’t going to happen, or an Eric Ferhnstrom comes along and makes a major gaffe.

Once the decision was made it was seen that it could be politically useful to make an issue of it being a tax..but it is not as if this was some strong conservative belief.

Terrye on July 5, 2012 at 2:59 PM

The point is the mandate has legally been declared a tax by the Supreme Court. “Tax” is a word most Americans have an instinctive revulsion to and attacking Obama as a tax increaser is a no-brainer. However, governor Romney appears not to want to do this and would prefer to stop talking about Obamacare completely. I will leave it to the readers to determine why Romney doesn’t want to discuss Obamacare anymore.

I’m not sure what your point is decrying “conservative hypocrisy” on the issue. Would you like conservatives to stop criticizing Obamacare?

Doomberg on July 5, 2012 at 3:36 PM

This was an excellent blog post by Capt. Ed!!..:)

Dire Straits on July 5, 2012 at 3:39 PM

Roberts was not endorsing ObamaCare — but he was implicitly suggesting that the proper way for it’s opponents to undo ObamaCare is through the political process.

Trochilus on July 5, 2012 at 3:21 PM

Yeppers, fluffing from the right…

It’s now an extra-Constitutional tax.

Mitt can get in, the House can stay the same, the Senate can go at least 51 R, the law gets changed…then in the next round it gets reversed…bla, bla,…see France and soon Germany.

The Bill of Rights is there to protect the citizens from their Gov’t and from themselves, their mass idiocy. Roberts ignored the Bill of Rights and the land in imeasurably scroomed. You can massage that turd all you want.

Schadenfreude on July 5, 2012 at 3:39 PM

The bigger lesson might be less that Romney’s team (that conservatives had praised for two months for its willingness to fight the Obama campaign) needs to change, than the need for conservatives not to be so quick to hit the panic button over one response.

+ 100..That is priceless!!..:)

Dire Straits on July 5, 2012 at 3:43 PM

Chief Justice Robert’s opinion was a classic exercise of “judicial restraint” . . . deferring to the decision of two political branches by finding a constitutional ground on which the statute could be upheld.

Trochilus on July 5, 2012 at 3:21 PM

That’s beyond laughable. There was no Constitutional ground upon which to uphold the criminal law, so Benedict Roberts created one – and in creating that new sort of tax (unheard of in American history) he made a mockery of the Court, our Constitution, and our nation.

Stop trying to find anything correct about his opinion. It was an offense to the intellect and a rape of logic and the Constitution.

ThePrimordialOrderedPair on July 5, 2012 at 3:26 PM

You obviously have no idea what you are talking about. I’d recommend that you begin by actually read the opinion before making such statements.

Roberts’ opinion was a classic example of “judicial restraint” — duly considering all alternative constitutional grounds of construction on which to uphold the constitutionality of an Act of Congress, prior to declaring the act unconstitutional.

That was precisely what he did. He did agree with the four conservatives that it was an improper and unconstitutional extension of the limited enumerated powers of both the “Commerce” and “necessary and proper” clauses, as repositories of federal power in Article I of our Constitution.

Those finding, incidentally, will be huge going forward. For about 70 years now, the Court has only identified a few very minor Acts of Congress to be impermissible extensions of the limited power envisioned by the Commerce Clause.

This decision one builds s sturdy corral around those two clauses.

I disagree with his view of the taxing power, as I also pointed out above. But your statement claiming that is not a decision based on his view of “judicial restraint” is just wrong.

Trochilus on July 5, 2012 at 3:53 PM

silvernana on July 5, 2012 at 3:24 PM

Hang in there, it gets better now.

Cindy Munford on July 5, 2012 at 4:03 PM

Troch – the problem is that in his rush to show judicial restraint, he re-wrote the bill, which doesn’t seem a very restrained act and also in doing gave the federal govt even broader tax powers than before – the govt cannot compel you to buy a product, they can only penalize you for not doing it. I see no difference and a complete gutting of the 10th Amendment. I have a real hard time seeing the enumerated powers of the federal govt that allows you to pull off that trick.

If you buy Roberts reasoning, then the 16th Amendment was unnecessary – although the SC said it was necessary.

Tyranny runs rampant amongst the DC elite who see us as slaves, whose wealth no matter how great or small belongs to them first.

Bad decision, by a judge who was perhaps trying to split the baby, but who I think in his blind devotion to try and be non-controversial gave more consideration to his feelings about that than his duties under the constitution for position for which he was confirmed. A huge unforced error.

Zomcon JEM on July 5, 2012 at 4:08 PM

Leftists discover that they need to hide their support for ObamaTax:

Ohio Senator Vulnerable For Health Law Support

“…[Sherrod] Brown is one of 60 senators who voted for the new health care law, and he’s pleased most of it was upheld by the Supreme Court. But when asked whether he’ll now campaign on that widely unpopular law, Brown demurred.

“My view is there are so many good things in it, I supported it and will continue to,” he said, “but it’s important that the politics stop here, that instead of people trying to get political benefit from this, that we move on and focus on what we ought to be doing, and that’s job creation.”

Some shoppers said they’d like Brown to talk more about the health care law.

“He voted for it,” Nancy Wassen, a Democrat from Ashland, said. “I think he kind of has to at least include that in what he talks about.”

Others, though, advised caution.

“Right now, there are a lot of people that are against Obamacare, so I’m not sure that that’s the wisest decision to make,” said Laura Dorrie, a retired teacher who described herself as an undecided independent.”

mountainaires on July 5, 2012 at 4:21 PM

Schadenfreude on July 5, 2012 at 3:39 PM

Don’t you even bother reading others’ comments before spitting out such shrill and emotional responses?

And just out of curiosity, could you please explain what this means?

. . .
Roberts ignored the Bill of Rights and the land in imeasurably scroomed.
. . . .

* * * * *

I said before, and I’ll say again — I disagreed with Roberts opinion. I believe it was too deferential to the political branches, but I do understand the basis of his opinion. And I will not engage in the childish sort of name-calling — about Roberts, or otherwise — that is reflected in so many comments.

The current judiciary, and most of it’s jurisdiction, were largely historical creations of the Congress, first and foremost by the Judiciary Act of 1789. Only the Supreme Court itself and a few references to it’s power to act were institutionally created by the United States Constitution itself.

Judicial restraint is founded on the notion that policy decisions should be made by the political branches, and that the Court should consider every constitutional basis for upholding the constitutionality of an Act of Congress.

The Obama Administration did argue before the Court (as a third alternative) that ObamaCare could be upheld as an exercise of the taxing power, if the Court did not find that it was constitutionally permissible under either the “Commerce clause” or the “necessary and proper clause.” That was the basis of the Roberts opinion.

Trochilus on July 5, 2012 at 4:29 PM

This from a poster on pjmedia:

This election is not about Romney, and it is not about Obama. It will be a demonstration of an electorate determinedly divided by opposing, seemingly unreconcilable philosophies/ideologies/DOGMAS. Are blacks and latinos so invested in the victim narrative that they can’t see the truth about Obama’s lack of good character? Are conservatives so invested in their own victim narrative that they will not credit Romney with showing far more good character than Obama? This country is like Pauline (as in “The Perils of Pauline”), tied to the railroad tracks as the train draws ever nearer (with “Obama wins again!” painted on its side). The only hero around to save her is Romney, who is badmouthed like he was “slow walkin’ Jones”, almost too slow to get the job done. And of course the townsfolk (those who should be supporting Romney, by dint of their realization of just what Obama is, and how bad that has been, and will continue to be as long as he is in any office at all, much less the Presidency) are no help, just looking out their windows and making smart-aleck remarks. Will slow-walkin’, slow talkin’ Jones rescue our heroine (the U.S.A.)? Well, guess what, it’s not up to him after all; it’s up to all those lily-livered townsfolk, who live right there by the railroad tracks, and can just walk right out there and untie the ropes that bind Pauline/America, just in the nick of time (that would be next November 6th). So put on your magical mental armor, or hair shirt or whatever bucks you up inside, and feel the glow of assurance that Romney/Jones will make it to the church–er, railroad track–on time, fustest with the mostest. Laugh at that wheezing steam-kettle of a train, in the bright light of mental clarity, and think about maybe you’ll go kick it off those little toy tracks yourself, if need be. Pauline is OUR girl, not Obama’s. He can’t have her–and he won’t.

Bambi on July 5, 2012 at 4:48 PM


Any number of legal observers had opined last year that Roberts was the most likely of the conservative Justices to vote to uphold, based on his record of deferring to federal power in both the Executive and Legislative branches. Because of mindless prejudice against Kennedy, many lay observers focused exclusively on him, even though he has always been suspicious of the power of the state over the individual (because they didn’t like some of his “swing vote” decisions in the past).

Roberts agreed with the Republican position from the ObamaCare debate: it’s a tax, Jack, no matter how you slice it. So of course he should be crucified for daring to say we were right all along.

As to Fehrstrom’s gaffe, SO WHAT? It is NOT a BFD – name two instances where a surrogate gaffe in June or July had an effect on a Presidential race. Name one. Name one that had an effect no matter when it came in the campaign.

WSJ has degenerated into the “stupid nitpicking conservative” subcategory. There was a time when their editorials were generally sensible. It has passed.

Adjoran on July 5, 2012 at 4:50 PM

Then indulge with those that say his ruling is in direct disagreement with the income tax.

Zomcon JEM on July 5, 2012 at 4:50 PM

“…What seems to be rankling conservatives more than anything is the way Roberts steers past the government’s frontline argument — that the insurance mandate is constitutional as an exercise of power granted by the Constitution’s Commerce Clause (Article I, Section 8) — and pulls to a stop at the government’s fallback argument — that the “penalty” for foregoing the purchase of insurance be treated as a tax inasmuch as the “Court follows a functional approach, ‘[d]isregarding the designation of the exaction, and viewing its sub­stance and application'” (Syllabus, p. 4).

In other words, if it walks like a tax and quacks like a tax, it is a tax for constitutional purposes. The “penalty,” so treated, thereby nullifies the command power that would be imputed to the mandate under the Commerce Clause, a power that the ruling deems unconstitutional. Roberts himself summarizes this position best (Roberts, p. 44):

“The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”

But Jacobson, you say, this makes it look like Roberts wants, really wants to find ObamaCare constitutional. Well, yes, he does. And furthermore, he openly acknowledges this, along with precedent cited:

“‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v. California, 155 U. S. 648, 657” (Roberts, p. 32).

It is noteworthy that Roberts’ citation refers to five additional precedents. The point is that Roberts’ contention is not just a silly figment of an addled imagination, as with “penumbras, formed by emanations”; it is a serious proposition with a respectable jurisprudential history.

“…Roberts actually has shown himself in this crucial ruling to be the ultimate advocate for authentic judicial anti-activism (Roberts, p. 6):

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Read more:

mountainaires on July 5, 2012 at 4:52 PM

Bambi – I would take issue with your post but only in that I think people of poor character are more likely to fall for the notion that govt is the answer.

Where we are is that the public is split on whether they wish to be wards of or masters of the state. The democrats wish us to be wards, some because they are too ignorant to think through what that really means and they refuse to see the carnage that is human history when it follows that path. Others in the party, like the president just believe in the path to power through recycled campaign donations through govt spending to favored clients. They are just crooks.

The GOP unfortunately has their share of the same types.

So which is it? I think the Republic hangs by a thread.

Zomcon JEM on July 5, 2012 at 5:04 PM

mountainaires on July 5, 2012 at 4:52 PM

To create an ability for congress to tax inactivity – a very interesting non-policy judgement type of judgement.

Zomcon JEM on July 5, 2012 at 5:07 PM

Zomcon JEM on July 5, 2012 at 4:08 PM

I don’t disagree with a few of the sentiments you’ve expressed, though I guess I’d hesitate on a few points. For example, I’d be interested in just a little bit more proof that that “Washington elites” want us to be their slaves! That seems pretty strong! Heh!

Seriously, however, I think a part of the problem is that some people seem to think that the job of the Supreme Court is to identify what they don’t like on some policy ground, and then find a way to declare it unconstitutional.

Conservatives have long complained about judicial activism on similar grounds for decades now. And, in general, I think they have been right.

Now, I think Robert’s reading of the taxing power was alarmingly broad. But I think I understand the basis of his decision, even though I do not agree with it. I think he could have much more narrowly construed the federal taxing power, and concluded that Obamacare was unconstitutional on all of the grounds advanced by the Obama Administration.

Finally, the best answer with respect to Obamacare seems to me to be to elect someone other than Barack Obama to be the next President, and to simultaneously throw out a sufficient number of Democrat senators to gain the majority there, all whilst preserving a healthy majority in the House of Representatives. So, at a minimum, I’ll be voting for Mitt Romney, and every Republican in sight.

Am I wrong? I don’t think so!

And, I’ll add that I am going to do what I can to help all of that to come about, through my words and my deeds!

What I am not going to do is post shrill and baseless comments on threads like this one, nor am I going to engage in advancing “Woe is me!” conspiratorial and ultimately baseless theories about why something happened, nor am I going to engage in childish name calling.

It doesn’t help, and for the most part it always proves counter-productive.

Trochilus on July 5, 2012 at 5:11 PM

Seriously, however, I think a part of the problem is that some people seem to think that the job of the Supreme Court is to identify what they don’t like on some policy ground, and then find a way to declare it unconstitutional.

Trochilus on July 5, 2012 at 5:11 PM

That’s just an outright lie. No one here has ever argued that. You know that. We know that. Everyone knows that. People want the Constitutional limits on the branches of government respected and the SCOTASS to rule by the Constitution, not by popular referendum. Roberts created a whole new sort of extra-Constitutional tax that you don’t seem to care about. Good for you. But that’s not how things are supposed to work. In fact, that has done serious (and likely irreparable damage) to our system, which was wheezing and on its last breath, to begin with.

This argument of yours is really beneath contempt. It’s a blatant and intellectually offensive lie.

ThePrimordialOrderedPair on July 5, 2012 at 5:19 PM

Aren’t we thrilled that Mittens is our candidate? And that his gang that can’t shoot straight is right on top of things?

Aide Fehrnstrom needs to be defenestrated. But that’s only half of the problem.

Arms Merchant on July 5, 2012 at 5:24 PM

Let’s look at this way. People with 401K plans get penalized 10% for early withdraw. However, most Americans see it as a tax and is reported on your 1040 return. There is nothing different here with the mandate tax.

djaymick on July 5, 2012 at 6:50 PM

Obamacare is only legitimate if the President who signed it is legitimate.

Take a look at two stories that are up on the Drudge Report right now…

Obama’s Social Security Number challenged…

‘American story’ faces fresh scrutiny…

ITguy on July 5, 2012 at 12:51 PM


Sheriff Joe Arpaio and his Cold Case Posse investigating Barack Obama’s presidential eligibility have been promising more major revelations since their March 1 press conference, and now another event has been scheduled to unveil new information.

Arpaio told WND a press conference will be held July 17 at 2:30 p.m. local time at the Maricopa County Sheriff’s Office in Phoenix, Ariz.

WND has announced it will live-stream the event as it did in March.

The evidence will include information gathered in the posse’s recent investigative trip to Hawaii as well as an update on the ongoing investigation.

At the March 1 conference, as WND reported March 1, Arpaio and his Cold Case Posse announced there is probable cause that the document released by the White House in April 2011 purporting to be Obama’s original, long-form birth certificate is a forgery. The posse said it also found probable cause that Obama’s Selective Service registration form is fraudulent.

WND reported last month that a letter from Hawaii’s Department of Health verifying Obama’s birth in Honolulu has “opened the door” to some “shocking revelations” the posse is promising to disclose.

Among the details leaked early by Cold Case Posse lead investigator Mike Zullo: There are allegedly several stamps bearing Registrar Alvin Onaka’s name “floating around” inside the Hawaii Department of Health.

“I can’t disclose to you what we’ve discovered, but it’s going to be a shocking revelation at our press conference,” Zullo told Tea Party Power Hour host Mark Gillar in a telephone interview from Hawaii.

Three weeks after the March 1 press conference, Arpaio said there was “tons” more potentially shocking information on Obama in connection with his probe into the president’s eligibility.

Zullo has said he and his investigators have reservations about a letter stamped with Onaka’s name that was sent to Arizona Secretary of State Ken Bennett as verification of Obama’s Hawaiian birth.

Zullo said the letter fails to list Obama’s birth date, and it’s merely stamped with the registrar’s name, while another set of initials – not Onaka’s – appears next to the signature.

ITguy on July 5, 2012 at 7:29 PM

Bad news RINO lovers. If ObamaCare has been transformed into ObamaTax, then RomneyCare is now RomneyTax. Doesn’t that make Mitt the biggest tax raiser in Massachusetts history? Does anyone wonder why he didn’t want it called a tax?

WyattsTorch on July 5, 2012 at 7:44 PM

Troch – thanks for your reply, I think we are closer in agreement except that I would give a more negative adjective on Robert’s reading of Congress’s taxing authority than you would. Let’s face it, neither of us agree with his ruling.

As to the slave comment, I don’t think I am going to pull back on that one because I believe it is appropriate. The ruling class, the political elites, whatever negative you wish to give them, do view the fruits of our labor as the govt’s property before it comes to us. And it is always so with the central planning types and consistent over time with the bastard philosopy born of the French revolution. That is the modern democrat’s legacy – it no longer resides with the Founders of the US. Everything they stand for – and they said it much more openly at the turn of the 20th century – is to repudiate the founding of the country and essentially turn their back on our founding documents.

Their words – not mine. I’m sure you have seen Goldberg’s research into this. When I suggest our Republic hangs by a thread, I do not say that to shock, but to state a plain truth.

I do not intend to cry – I intend to fight and argue and vote and campaign against the monstrosity that is both Obamacare and a capital city that is all consuming and sucking the country dry. Giving Robert’s any credit – which is where you and I part company – is to try and pass it off. It is no laughing matter. Robert’s has opened pandora’s box, and he did it to support his own personal feelings on the roll of the court, which are dangerous, especially when the legislative and exeutive branches are playing games with words and language to slide something through.

I consider it the most dangerous ruling since Wickard. If we lose this November we have a real big problem on our hands. The last bankruptcy of a major power elevate a bunch of Russian mobsters and ex-KGB types into the oligarchs.j

Zomcon JEM on July 5, 2012 at 8:14 PM

Hmmmmmmm, nice to see so many new folks commenting.

Cindy Munford on July 5, 2012 at 9:45 PM

He did agree with the four conservatives that it was an improper and unconstitutional extension of the limited enumerated powers of both the “Commerce” and “necessary and proper” clauses, as repositories of federal power in Article I of our Constitution.

Trochilus on July 5, 2012 at 3:53 PM

Given the above, Benedict Roberts should not have sided with the Libtard justices. Article 1 determines what Congress is allowed to do. They have no authority to legislate in most of the areas in which they legislate. Roberts ignored all that and upheld the monstrosity. When you ignore the letter and spirit of teh Cobstitution you than have an act of judicial activism, not restraint. Believe what you will but you ignore the facts as they stand on the ground. Benedict Roberts has acted in the mainstream of libtard judicial activism going back 100 years.

Quartermaster on July 6, 2012 at 8:04 AM

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