Move over Benedict Arnold, the pages of history have just revealed a new villain – Chief Justice John Roberts. If you turned on your television, radio or computer today, chances are you have heard about two major issues:
Eric Holder has been held in contempt of Congress. I will not discuss this now, except to say, “Holder lied – people died.” The libs have that one coming. And:
The U.S. Supreme Court (SCOTUS) upheld the “Affordable?” HealthCare Act – or should I say they punted?
The talking heads are trying their best to convince us that this is a good thing – please do not insult our intelligence. Can we take these lemons and make lemonade? I hope so, but if we do it’s no thanks to SCOTUS.
John Roberts confuses the law
In a move that would make the Bee Gees proud, these jive talkin’ turkeys in black robes managed to confuse the living daylights out of the rest of us. Well, take heart, America. It’s not our lack of understanding that is faulty; it’s either their lack of comprehension of the law or their refusal to comply with it. And chief among them is Chief Justice John Roberts, once thought to be the great conservative hope of SCOTUS.
There are several peculiarities in SCOTUS’ decision. On one hand SCOTUS ruled that the Commerce Clause argument was unconstitutional – however, they went on to support the rest of the legislation. Did I miss something? If any part of this is unconstitutional, how can it be forced down our throats? You may recall hearing about “severability” – if you don’t know what that is, read Nick Purpura’s recent article. A severability clause was not included in this legislation but that didn’t stop this Court. They severed it anyway.
The Commerce Clause does not suffice…
Regarding the Commerce Clause, Chief Injustice John Roberts stated:
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to ‘regulate Commerce.’
…but the Tax Clause does?
Benedict Arnold. Copy of engraving by H. B. Hall after John Trumbull. First published 1879.
John Roberts correctly acknowledged that this Act could not be upheld under the Commerce Clause. But that didn’t stop him. Instead he gave the Congress another avenue to do the same thing. In his comment above he stated that our Framers knew the difference between doing something and doing nothing. Apparently you can’t say the same for any branch of our government today. This Act does give Congress the right to regulate what people do not do. How could John Roberts miss that? The very reason the Commerce Clause couldn’t stand as an argument in favor of upholding this legislation is because there is no argument to uphold this legislation. Congress does not have the authority to regulate what you do not do. John Roberts was correct. Congress can regulate trade – they cannot compel it – plain and simple. In the words of Benedict — I mean John Roberts:
Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.
Right again – but ignore it, he did.
Not the Court’s job?
John Roberts goes on to say:
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.
Right again. There is something called judicial restraint that is supposed to “restrain” judges from writing law, but then John Roberts goes on to re-write the law. (A bemused Justice Anthony Kennedy says as much in dissent.) Confused? You should be. His arguments are correct, which makes his decision hypocritical at best.
It would be so nice if this were the end of the ambiguities in this decision. It is not. The majority decision (that is to say, the decision of John Roberts) acknowledged that this is a tax. OK. Then why didn’t he strike it down as unconstitutional on the basis that the Act did not originate in the House, as all revenue raising Bills must?
Mustn’t a tax be uniform?
Again, that’s not the only problem with this being a tax. John Roberts’ opinion further confused our citizens by stating that states could choose not to expand Medicaid without reprisals from the government. But…but…but if it’s a tax, then according to our Constitution all taxes have to be evenly charged throughout the country. You just can’t have one state paying a tax and another opting out. Maybe that’s not what they meant. Pundits are still trying to figure out what they meant, but all the waivers extended to unions and others should be invalidated if this is a tax. You cannot constitutionally tax one state and not another or one citizen and not another under Article 1, Section 9, paragraphs 4 and 6 – not to mention the practical nightmare this would create
Right now 53% of our citizens are paying taxes. The other 47% do not. What about equal protection? Let’s assume this Bill as adjudicated is enforced and the 26 states that have filed lawsuits against it opt out. That puts the burden of carrying this mess on the other 24 states, out of which we will assume 53% pay taxes. I’m not an accountant, and right now I don’t want to be because the scenario frightens the *#!!!**## out of me!!!!
There are those that are doing their best to cut John Roberts some slack. But I don’t think he deserves it. Over the course of the last 24 hours, I have heard many outraged commentators do their best to assert that they respect the court but the court just got this one wrong. As a former court reporter I can tell you that years ago the courts I served in deserved our respect. And I’m sure that there are many justices today that are committed to upholding the Rule of Law and our Constitution, the problem is that they are not the ones making news. Between SB1070 and now this debacle, it would be hard for this former court reporter to enter any courtroom and address the person sitting in front of me in a black robe as “Your Honor”. I’m sure they’re out there. They just haven’t been visible lately.