Why Roberts is full of it – UPDATED

[See updates below – Editor]

Today Justice Roberts engaged in one of the most politically motivated acts of judicial activism in the history of the court.

The Commerce Clause, whose “interpretation” expanded in 1942 as a result of a political threat from FDR to pass a judicial act to add a dozen or so members to the court and appoint them with political cronies if the court didn’t start ruling in his favor, finally had a line drawn in the sand with this ruling. Every lawyer knows that the expanding Commerce Clause interpretation lacked a certain legitimacy because of this history and even some more liberal inclined legal scholars have been coming to terms with this reality. Government expansionists have wiped their feet on that interpretation and as is so often the case, they were given an inch and took a mile.

Today, Justice Roberts along with four other Justices (Alito, Scalia, Thomas, and Kennedy) properly ruled that using the Commerce Clause to compel entrance into a market goes too far and that the Commerce Clause does not allow the government to compel market activity. This is good but is rendered almost hollow by what Roberts did as I will explain below.

Keep on mind that Ginsburg, Kagan, Breyer and Sotomoyor would have a Commerce Clause unlimited in power meaning that government can compel you to do most anything from the womb to the tomb. Anyone who tells you that the left does not want a leviathan state ….

So Roberts, in a nakedly political move to save ObamaCare, decided to rewrite the law and convert the mandate penalty into a tax. [/SARCASM ON] You see, Congress is stupid and in spite of the fact that they write and modify tax law every year, obviously somehow with this law, Congress had somehow forgotten to write it as a tax, or even call it a tax, but lucky for us we have Justice Roberts to come along and rewrite the law to teach those silly dopes in Congress how to write tax law [/SARCASM OFF]. Of course it is a responsibility of the court to ascertain and apply the legislative intent of the law as best the court can, GREAT! Except that the problem is that the President and members of Congress said repeatedly that the mandate penalty is NOT a tax.

When the Court asked for briefs on the ObamaCare law (ACA) they asked for briefs on the mandate, the denial of all Medicaid funds if states didn’t comply, the Commerce Clause etc. The Court did NOT ask for brief’s on the tax law implications of ObamaCare. This shows that web sites that watch the Supreme Court such as Prof. Volohk are very likely correct in their assertion that Roberts’ interpretation came very late in the process and in fact he probably changed his vote at near the last moment.

Tax law has to come in certain forms, either as a direct tax (called a capitation tax), an excise tax, or an income tax. The Constitution, in Article I Section 2, puts limits on the types of taxes that can be levied and there is plenty of case law defining these issues, all of which was ignored by Justice Roberts (by Amendment the income tax is an exception to Article I Section 2). In the opinion Roberts could not even tell us what kind of tax the ObamaCare mandate is. Is it a direct tax which must be apportioned equally, but look who is exempt; or is it an excise tax? In some ways the Roberts decision seems to act like it is parts of both.

[Editor’s Note: Some readers do not understand the tax law problem I was referring to so I will elaborate. Is the mandate an income tax? No. Is the mandate an excise tax? Well an excise tax is a fee for service so the answer is no. Is it a direct tax (capitation tax) no, because it is not equally apportioned among the states and the people (just look at who gets exempt for starters, states that get waivers ets etc). In short, as a tax it is not a constitutional one and goes against all previous tax precedent.]

There is also the issue of the Anti-injuction Act. The Anti-injuction Act says that the Court may not rule on a tax, no plaintiff has standing in court, until they are actually hit with paying the tax, thus preventing the Court from ruling on the matter further. Roberts, somehow in his ruling out of thin air, rules that it is not a tax for the purpose of the  Anti-injuction Act, but is a tax when it comes to the health insurance mandate and penalty, even though Congress specifically said it was not a tax. So for part of the ruling it is a tax and for the other part is is not a tax. This is insanity. Again, the fact that Roberts and the Court did not ask for briefs on this subject indicates that this scheme to save ObamaCare was invented at the last minute out of thin air.

Roberts’ ruling uses twisted logic to get from Point A to Point B. This is a ruling with a goal in mind and an attempt to justify it after the decision was made. Charles Krauthammer wrote that what Roberts pulled out of his hat is a dodge.

The Chief Justice (Roberts) was hell-bent to find a way to make this law applicable, so he just decided, you know what, as a tax increase it works… – Rush Limbaugh.

According to Roberts, the government is not punishing you and mandating you to enter the market, thus penalizing inactivity, instead they are merely taxing inactivity and somehow that makes it OK. This amounts to a distinction without a difference. Why? Now the penalty is low, but when the penalty for those who do not buy the government mandated insurance goes up to thousands of dollars a year in (2018) and the costs of health insurance are already skyrocketing because of ObamaCare, what are low income people going to do? Go to jail for not paying their (as now defined by Roberts) ObamaCare taxes? In every way that matters in the application of the ObamaCare law per the Roberts ruling it is a mandate with a penalty and the IRS will not be forgiving. The IRS has no enforcement mechanism for ObamaCare now, but does anyone expect that to last? Roberts actually has the gall to make the case that since the penalty is low it is not a “real” mandate.

The Secretary of Health and Human services can essentially regulate health care to the point of virtually nationalizing it over time.  In practice the government’s power to reach into our lives is greatly expanded in spite of the feckless words in the ruling that limit the Commerce Clause. It is Roberts’ job to uphold the basic tenant of limited government. The power grab in ObamaCare is off the charts which is why even the liberal minded  Justice Kennedy made it clear that such a grab is unconstitutional in its entirety.

The Roberts’ ruling is lawless. If his goal was to galvanize traditional America for Romney, he did it.

See what I mean –

UPDATE: After the Supreme Court Ruling on Obamacare What is Next? – LINK

[Editor’s Note – I can see the objections now: Chuck, sure you have legal training, but you are not a lawyer and some of the people you have quoted are not lawyers (such as Limbaugh and Krauthammer). In coming weeks there will be law review and professorial articles critiquing this ruling in detail. Time will tell if I am correct in my analysis, but my record of accuracy in such articles leaves me confident.]

UPDATE II – Dissents Back Political Arena Editor’s Analysis

Editor’s Note – I deliberately did not read far into the dissent because I wanted to form my own view of the ruling and also because I was so steamed after reading Roberts’ incoherent pretzel logic that I had to walk away. The Weekly Standard has a nice summary of the ruling with some notes in plain English to make it easier to understand. Of course the entire ruling and dissents can be seen at the pdf link at the top of the page.

Scalia, Kennedy, Thomas, and Alito Dissent: ‘We Cannot Rewrite the Statute to Be What It Is Not’

“Judicial tax-writing is particularly troubling.”

Justices Scalia, Kennedy, Thomas, and Alito forcefully disagree with Roberts in their dissent. “[W]e cannot rewrite the statute to be what it is not,” the four Justices write. “[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a ‘penalty.'”

The dissenting Justices also argue that “judicial tax-writing is particularly troubling,” since the Constitution requires tax bills to originate in the House of Representatives, “the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.”

The dissent goes to to destroy in details the pretzel logic and lack of legal reasoning and precedent of the Roberts ruling. Continue reading HERE.

UPDATE III Mark Levin’s analysis:

“The Roberts ruling  is so incoherent and full of internal contradictions that I would be embarrassed to put my name on it.”

UPDATE IV – First Paragraph of the dissent:

The first paragraph in the dissent hits it out of the park –

The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.

[Street Translation via the Editor – There are generally accepted limits on government power that have been repeated in the Founding Documents and in 220 years of law that tell us countless times that government power is limited. The fact that ObamaCare goes in excess of those limits is a no brainer. – Amen]

UPDATE V – Curt Levey: Top 10 Lessons from the Roberts ObamaCare Ruling – LINK

UPDATE VI – Mark Levin and Megyn Kelly on the Supreme Court: There is no silver lining (video) – LINK

UPDATE VII – Explanation of the ObamaCare Ruling for the Non-lawyerLINK

UPDATE VIIIMark Steyn: A lie makes Obamacare legalLINK

UPDATE IX – Prof. Paul Moreno: A Short History of Congress’s Power to Tax – LINK

About Chuck Norton

I write about politics, education, economics, morality and philosophy.
This entry was posted in Editorial, Health Law, True Talking Points and tagged , , , , , . Bookmark the permalink.

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