June 28, 2012

protein wisdom says: I freakin’ told you so. [updated x2]

Over. And over. And over and over and over and over and over.  And over and over and over.

Intentionalism just is.  But because we can’t concern ourselves with what we believe we’re doing when we claim to be interpreting, we’ve ended up institutionalizing a tyrannical form of “interpretation” that is linguistically incoherent.  Thus, behold:

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.

I won’t have to unpack that for longtime readers of this site, but do allow me to unpack it — as I’ve done with similar linguistically incoherent statements in the past — for those who will spend today bemoaning a ruling that, when viewed from their own intepretative perspective (rather than their policy desires), they can’t honestly fault.

To wit:  “Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”

Fine.  How is this the case?  Because, per Roberts,  the mandate looks something like a tax might look and could look — much in the way a cloud formation may look like a randy sheep three way, if you’re inclined to see it that way.  But unless you believe God or Nature intended to paint a sheep orgy in the gas and water vapor floating above Peoria, the clouds aren’t actually a sheep orgy save your intent to see it as such.

Intentionalism just is.

But, you argue, it clearly wasn’t intended as a tax (or if it was, there’s no way of ever knowing that, given that it was presented as a penalty and not a tax) — because the President publicly denied that it was a tax, and it was passed expressly as a penalty.  Therefore, it was signified into being — at the point of passage — as a penalty.  And a penalty is not a tax.

Or is it?

Intentionalism just is.

According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling.  Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax.  Which he justifies because the way the penalty looks to him suggests that “reasonable”  people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax.  How that is “reasonable” is anyone’s guess:   we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax,  therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”.  And that seems antithetical to “reason.”

Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.

And to do that, he — and those who approve of the argument that justifies this ruling — has to pretend that the text exists on its own, apart from the intent that generated it and passed it, and (here’s the sneaky part) apart from his intent to imbue it with a meaning that it didn’t have upon signification — upon its becoming language and then becoming a legal manifestation of that language, of that intent.  That is textualism.  And textualism is merely intentionalism that legitimates the disregarding of originary intent — that seeks to claim ownership over the meaning of a text without admitting to co-opting it or rewriting it entirely until it means precisely its opposite, eg.

Voila!  A penalty is a tax;  non-activity is activity; a commodity is a right; a subject is a free man.

Who’s “fundamentally unserious” now, I wonder?

****

update:  It occurred to me while taking a long walk that Roberts can claim that the was taking the Administration lawyers at their word when they argued before that court that what they had done, essentially, is levy a tax (albeit one that began in the Senate).  But even were that the case, Roberts would then be issuing his ruling on a law different from the one passed by Congress:  if it was presented as a penalty and intended as one, the only way to “read it as a tax” is to accept that notion that it became a tax once the government asserted that it was one.

They didn’t do so leading up to the vote, and in fact the President himself very publicly denied that the legislation’s mandate was a tax.  So either Justice Roberts decided a text not intended to include a tax in fact included a tax because it can be made to look like it contains a tax by him; or else the government turned a penalty into a tax during their legal arguments, in which case CJ Roberts would be issuing a ruling on a different law entirely than the one passed by Congress and presented for review by SCOTUS.

And neither line of reasoning is hermeneutically compelling.

****

update 2:  Lots of buzz about CJ Roberts’ genius in this ruling.  All very interesting — and all very beside the point, from the perspective of my analysis.  From a linguistic and hermeneutic perspective, the form of “interpretation” Roberts relied upon to reach his ruling is necessarily authoritarian.  One can act tyrannically in the service of any decision — even one favorable to “our” side.

The problem is, such a method of reasoning, accepted and institutionalized as legitimate, will, in the aggregate, move us toward tyranny precisely because it is designed to do so.  Which is why we need to reject judicial activism in principle and not cheer it when it serves our own ends.  As I’ve been writing in the comments all morning, Roberts’ decision — ostensibly framed as restrained and above the partisan fray — is itself quite political.  And some on the Left are starting to notice.

Well and good, if you wish to elevate politics above first principles — even if you say you’re doing so in the service of first principles.  I don’t wish to do so.  Moreover,  I recognize the systemic danger in so doing.

Had Roberts just done his job, the law would be dead.  Instead, he concerned himself with appearances.  And we’ll all suffer for it — in perpetuity, as precedent, regardless of whether this law is repealed or not.

T0 follow-up on the spin, “Obama Wins the Battle, Roberts Wins the War — and the Constitution Loses In Both Cases”

 

Posted by Jeff G. @ 9:58am
237 comments | Trackback

Comments (237)

  1. you did indeed

  2. For its next trick, Congress shall pass a law requiring every Constitutional lawyer to publicly flagellate himself every day and twice on Sundays. Should any such lawyer refuse to flay himself, he will be taxed $1,000 for each day that he fails to meet his federal requirements. Requirements and penalties shall be double for member of the federal courts.

    Suck on that, Roberts.

  3. Andrew McCarthy makes a similar, salient point about accepting flawed premises:

    Congress would not be able to tax anyone a penny if the subject matter on which lawmakers sought to spend the money raised was not within Congress’s constitutional authority to address. Health care and health insurance are precisely such issues. So why does Congress get to raise taxes for and spend money on them? Because the country — very much including Republican leaders and many conservatives — has bought on to the wayward progressive premise that the General Welfare Clause of the Constitution empowers Congress to spend on anything it wants to spend on as long as their is some fig-leaf that ties the spending to the betterment of society. That, and not an inflated understanding of the Commerce Clause, has always been the problem. Republicans are afraid to touch this because, if you follow the logic, you’d have to conclude that Congress has no constitutional authority to set up a Social Security system, a Medicare or Medicaid program, or most of the innumerable Big Government enterprises that Republicans support while, of course, decrying Big Government. Republicans occasionally want to limit what government spends, but they don’t want to acknowledge any constitutional limits on what government could spend — that’s what has gotten us to this point.

  4. Pass it around. I’ve been so thoroughly marginalized by “conservative” sites because of this very thing (that, and because I’m an asshole), but the fact remains.

    How you get there matters. Always has. And appointing conservative justices won’t matter if they accept faulty assumptions. GIGO.

  5. http://evilbloggerlady.blogspot.com/2012/06/hercules-cleaning-augean-stables.html

    From a @zerohedge commentor: “The US Constitution was already dead, but this qualifies as necrophilia” Pretty damn accurate.

    And yeah Jeff, you told us!

  6. It’s even worse than you imagine. John Roberts has basically just decreed that it is permissible to tax non-activity. In other words, it’s a distinction without a difference from reliance on the commerce clause, and in fact much more pernicious, because the Chief has just granted the federal government new powers.

    Heckuva pick, Bushie.

  7. it is permissible to tax non-activity.

    And if it’s a tax, then it’s easier to repeal?

    Please say yes.

  8. Again, not reading comments yet. I just got up about 5 minutes ago. I am shocked and angry.

    Please continue to preach to the remnant, Jeff. I realize it must be frustrating as hell, and you very likely won’t get any credit for it either.

    However, the truth needs to be out there.

  9. That is true, Dicentra. But it’s easy to repeal anyway. It was passed via reconciliation, it can be repealed by reconciliation.

  10. John Roberts has basically just decreed that it is permissible to tax non-activity. I

    Yes, and per Bill Whittle – they have made a commodity (healthcare) into a “right.”

  11. GG liberty. Nice Try personal responsibility. Better luck next time property rights.

  12. Penalties are what are levied on non-activity such as not getting a permit to do something.

    But hey, SCOTUS just came out of the closet as fully rabid Otaku. So there is that. They are now officially in the “alt” universe.

    Thank you John Bradley for that link yesterday.

  13. It was inevitable.

  14. Friend of mine just pointed out that, for the purposes of using the Anti-Injunction Act, the Court decided that Congress did not intend for the mandate to be a tax and so the Anti-Injunction Act does not apply.

    The Court then, in the same document, calls it a tax in order to rule on the constitutionality of the law.

    I’d say something about lawyers but what else needs to be said, at this point…

  15. Actually, it’s per Roberts himself, isn’t it? Ginsberg’s concurring opinion (joined by the rest of liberal block) held that they’re fine with the notion that the Commerce clause allows Congress to tell you what you buy.

  16. And this post will be studiously, studiously, very studiously ignored outside of this site. Unless Glenn or someone links it. I sent it to him. He still treats me as someone other than the enemy.

  17. Apparently IMAO and PJM are sort of trying on the idea. For now.

  18. Good point, Ernst. I’ll correct.

  19. Jeff, I find your comments unhelpful and Visigothy in nature.

    How you get there matters. Always has.

    I made the same point to a friend of mine who is adamantly pro-gay marriage. My point to her was that if you’re okay when the judiciary enforces your wishes by fiat, you’ll have no room to complain when they cart us all of the gulag. Sure, I’ll be in chains too, but I’ll be laughing my ass off and pointing at her sad little clown face.

  20. The really fucked up thing about this? Roberts made an activist reading of the law (the mandate’s not really a mandate if it can be understood to be a tax) itself in order to reach a restrained* decision.

    *One understanding of the doctrince of judicial restraint —call it the Frankfurter doctrine— hold’s that Courts should defer to the will of the people, as reflected in the legislation enacted by their elected representatives on their behalf. (Set aside that Congress arguably was acting against the will of the people to force through an unpopular law on a party-line vote).

  21. And what rough beast, its hour come round at last,
    Slouches towards Bethlehem Washington to be born?

  22. Just out of curiosity (hot air crashes my tired ol’ eMac) who’s the pompous ass who dropped the “fundamentally unserious” turd in the comments. (I’m assuming that’s something found in the comments, anyway.)

  23. “And what rough beast, its hour come round at last,
    Slouches towards Bethlehem Washington to be borne about on the backs of the poor and the betrayed?”

  24. I harbor a wish that we could read Plato’s Republic, but recognize the impossibility of that.

  25. Jeff,

    Have you read Erick Erickson’s take on this? Thoughts?

  26. Hyperbole aside, how much of the populace now realizes that the United States now is of the government, by the government, for the government?

  27. The Constitution phones to say “I’m living’! I’m breathin’! Bawdy Jeebus in a black robe, I’m more limber than Stretch Armstrong!”

  28. It was inevitable.

    The best Roadrunner cartoons are those where Wile E. Coyote executes his clever plan, it backfires, and as he contemplates his failure, the last domino in the chain of unintended consequences drops inevitably into place, as it must.

    But only after a comically significant pause. And then the chunk of rock we almost forgot about pile-drives him further into the crater.

  29. I have a plan to save the auto industry. Let’s tax everyone $10,000 each year that they don’t buy an American car.

    It’s clearly legal…

  30. Oh yeah. So the Republican spin is that John Roberts is playing chess?

    Rivers in Egypt.

  31. Erickson’s full of shit. Anyone who can open his argument by saying that Roberts’ punting on his Constitutional duty was the act of a chess grandmaster is somebody who can’t be taken seriously.

    The Court’s job was not to “stay above the partisan fray.” The Court’s job is to enforce the limits on Washington’s power, and to protect the rights of an erstwhile “free people” to live their lives with a minimum of intrusion from the power-hungry sociopaths inside the Beltway.

    So I’m not buying any nonsense about chess mastery. This was a punt, and a cowardly dodge, and for Erickson to try to pick through the pile of dog shit to find some flecks of gold leaf to claim as victory is just sad. I’d say it was beneath him, but he’s shown in the past that very little is any more.

  32. I react similarly, Squid. He contradicts himself.

  33. John —

    My take is this: Erickson is looking at this from the perspective of politics. I’m looking at it from the perspective of foundational, kernal structural assumptions. What is not Roberts’ job is to teach us a lesson about keeping politics political.

    Roberts further legitimates a way of interpreting that merely means others will have leave to interpret this way. If we have leave to interpret this way, the Constitution is indeed a “Living document.” And if it is indeed a Living document, it is not stable — and so, coming full circle, is inherently politicized.

    I’m completely down on Roberts. His hubris — disguised as modesty and restraint — has further ushered us toward our own demise. All it takes is people with no virtue willing to assert — and the votes needed to bring that assertion into being.

    I will say this, though: I suspect the pollyanna pragmatists on the right will be far more likely to accept Erickson’s analysis than to even bother with mine. Which is precisely why I talk about a ruling class, its useful pragmatic idiots, and losing more slowly.

    Not saying that about Erickson, by the way. Just reacting to his analysis, which I reject.

  34. Pingback: Good Thing John Roberts was So Carefully Vetted… « Andrew J. Patrick

  35. So now any time the proggs want us to do something, they just levy a tax on those who don’t do it.

  36. Or what Squid said.

  37. Pingback: The Health Care Ruling | PolicyZ

  38. Limbaugh just said the court said “There is no limit on what the Government can tax.” He’s now expanding on that. But I beg to differ, for I think there is a limit, albeit not a limit residing within the control of any of the three branches. Still, we are the limit. And we will see whether we impose those limits it is in our powers to impose. This, I think, is the fullest meaning of the term politics.

  39. Erickson’s full of shit.

    Generally. His cheerleaders have convinced him that he is smarter than the average bear.

  40. Well, at least we know what the election is about now:

    Keeping the Republic (what’s left of it) a republic (such as it is).

    Which is the best we can hope for, because our (ostensible) would be leader is Mitt fucking Romney.

  41. If Barry wins in November (or heck, even if Romney wins), I expect to pay a future tax when I

    1) Each year I don’t buy a Chevy Volt
    2) Each time I don’t vote for a Democrat
    3) Each time I fail to slobber over Christina Hendricks’ boobs

    Okay, #3 will never be a problem for me, so I’ve got that goin’ for me.

  42. Just so you know who is on our side.

    It’s like we’re living in the Twilight Zone: now “originalism” is being redefined as rewriting established intent and replacing it with our own. The left has to be LOVING this kind of thinking.

  43. But unless you believe God or Nature intended to paint a sheep orgy in the gas and water vapor floating above Peoria, the clouds aren’t actually a sheep orgy save your intent to see it as such.

    I’m feeling like a sheep’s vulva right now.

  44. I urge you all: reject the GOP happy spin. All of it. It’s a trap.

  45. I stopped being on the same side as Hugh Hewitt sometime between ’06 and ’10.

  46. http://www.weeklystandard.com/blogs/election-just-became-about-obamacare_647928.html

    A ‘binary choice’ they say, yea or nay on Obamacare. Given BHO’s skill as ‘Community Organizer in Chief’, and our current crop of soft, weak, and ever-more-expectant ‘Americans in Name Only’, expect a landslide for four more years.

    Meh. de Tocqueville (or whoever) knew this was coming.

  47. Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was

    That’s the part I think the biggest load of horseshit ever piled. Even Obama knows that’s horseshit, which is why he refused to call it a tax.

    What they can do now? Declare a war on obesity, and tax everyone whatever if they are not at their proper BMI. Also, tax everybody whatever if they don’t do their required annual doctor visit, where the doctor will determine if you are at the proper BMI, along with a few dozen other taxable markers.

    This was and still is the whole problem with the mandate that stands, it changes the whole relationship between the government and the people. We are no longer free men.

  48. Very simply: They are the same old Republicans. GOP leadership is jittery that the Fast & Furious investigation, and the extraordinary measure of holding Holder in contempt, will make the Obamedia say bad things about them and — shudder – upset independents and moderates. Yet leadership also knows that if it does not, at least for appearances’ sake, back Issa, conservatives and other concerned Americans, who want accountability for this heinous episode, will revolt. So leadership figures: We’ll do the contempt vote to satisfy the right-wing knuckle-draggers, but we’ll do it while nobody’s looking so the left-wing press will have to go easier on us. Profiles in Courage! *

  49. It’s a trap.

    Bu… buh… but Boehner’s already scheduled a repeal vote!

    Sure, Harry Reid will take that bill and wipe his ass with it, after which Boehner et. al. will say, “well, we tried to repeal it and we failed, so now we have to find a way to reform it and make it work,” but only after they promise to try, try again after we elect more Republicans!

    (And all the while, they’ll be hoping the Dems hang on to 41 seats in the Senate so they’ll have no choice but to go down the reform path they want to go down anyways.)

    But remember kiddies, 3rd parties are for losers!

  50. Normally I’d puke out a Mal Reynolds “Aim to misbehave” type quote on a day like this.

    But, no. I think Hoban Washburn is more in order.

    Wash: This landing is gonna get pretty interesting
    Mal: Define “interesting”
    Wash: Oh God, oh God, we’re all gonna die?

    Yeah…that fits.

  51. James Ceasar: Restoring the Constitution.

    I’m not certain this is the best way through the thicket, but I do think it’s worthy of consideration, at least as a start.

  52. My new litmus test. If it doesn’t shift power or responsibility away from DC and the crapdouches that infest it, I’m agin it. If you vote for stuff that consolidates power or responsibility in DC, I’m voting agin you.

  53. What they can do now? Declare a war on obesity, and tax everyone whatever if they are not at their proper BMI. Also, tax everybody whatever if they don’t do their required annual doctor visit, where the doctor will determine if you are at the proper BMI, along with a few dozen other taxable markers.

    Bloomberg doesn’t have to ban 32 oz. sodas, now. He just has to tax soda pop at $10/ oz. for every once above the arbitrarily determined optimum.

  54. ‘Member I’m just a bill and I’m only a bill, and I’m sittin’ here on Capitol Hill?.

    Can’t wait ’til School House Rock comes out with Relax, it’s just a small tax

  55. Actually ernst, he could probably already do that. What he can do now is tax you if you don’t buy a daily bottle of mineral water (or whatever drink company he has an interest in).

    It’s why the comparison to car insurance is wrong. You don’t have to drive a car.

  56. The soda tax pays for your daily dose of castor oil!

    And the federal agent to make sure you take your medicine like a good subject should.

  57. Pingback: Fuck «

  58. I’m dismayed with this finding, like most here at PW, and agree completely with out host’s thoughts on the matter; but I can’t say I’m surprised…

    Not only did the CJ choose to rewrite the statute, but seems to have done so precisely because of political pressure to “not politicize” the court. He was more concerned with his “legacy” than the Constitution, and bought into all of the prattle being spewed by Politico et al. Funny isn’t it, how righteous and proper this 5-4 decision is today, when the very same people cheering have been telling us how illegitimate a 5-4 decision in this case would be…

    Erickson’s attempt to pluck diamonds from this dung is as much twaddle; Jeff is correct in saying beware of entering the cocoon that would somehow declare this a victory for classical liberals/conservatives/constitutional originalists. About the only saving grace here is that it fully frames the issue starkly for the fall; do people want the new stupendous health tax, the one Obama swore wasn’t, and the concomitant welfare state, or do they really want to reject it all?

    If only Romney wasn’t the standard bearer here.

    May God have mercy upon us all…

  59. Lamontyoubigdummy says June 28, 2012 at 11:32 am

    Mal: “Well, just get us on the ground.”

    Wash: “That part’ll happen pretty definitely.”

    Jayne: “We’re gonna explode? I don’t wanna explode!”

  60. Call it what it is. It’s a majority of 1 joined by a plurality of 4, none of whom cared about how they got to the outcome so long as they got the outcome desired.

    If were going to be governed by a quorum of 9, we’d damn well better start electing the 9.

  61. Remember when the Left was muttering about a “Constitution-in-Exile” movement that never actually existed?

    I think it does now.

  62. I’d comment, but I’m too busy at the moment steaming broccoli and tofu for lunch.

    After that? Sorry, but I gotta get ready for the mandatory 10 Km daily neighborhood run.

    So, maybe later…

  63. It’s why the comparison to car insurance is wrong. You don’t have to drive a car.

    We’re rapidly approaching the point now where if you do want to drive a car, you will have to drive an electic/hybrid.

  64. The other day after the Arizona decision came down, I remarked that I thought Limbaugh had lost the thread. Today, attempting to grasp this decision, follow the Congressional debate prior to the debate on the Holder Contempt vote, listen to Limbaugh explain his take on NFIB et al v Sebelius as well as listen to him explain twenty other people’s take, read here, read the decision, and read forty other things, I think I’ve lost the thread.

  65. I’m dismayed with this finding, like most here at PW, and agree completely with out host’s thoughts on the matter; but I can’t say I’m surprised…

    Good, Bob. Anyone who is surprised is under the illusion we still have a Republic.

  66. We still do have a Republic. It’s just a matter of reminding our countrymen until enough of them wake up.

  67. Oh, the country still exists, until it runs out of credit, but the Republic has been pretty moribund for decades.

  68. [E]ither Justice Roberts decided a text not intended to include a tax in fact included a tax because it can be made to look like it contains a tax by him; or else the government turned a penalty into a tax during their legal arguments, in which case CJ Roberts would be issuing a ruling on a different law entirely than the one passed by Congress and presented for review by SCOTUS.

    Scalia says as much (hat-tip to sdferr):

    The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.

  69. It’s just a matter of reminding our countrymen until enough of them wake up.

    They aren’t asleep, they are illiterate idiots.

  70. We’re rapidly approaching the point now where if you do want to drive a car, you will have to drive an electic/hybrid.

    That’s only if you can prove a legitimate need for a private vehicle, rather than just using your mass-transit ration pass like everyone else.

  71. BREAKING: Obama spends $666.00 on flower arrangement sent to John Roberts. And a napkin.

  72. the Republic has been pretty moribund for decades.

    At least eight, and quite possibly ten or eleven.

  73. Jeff,
    Do you buy Althouse’s argument that CJ Roberts reasoning limited Congress under both the spending power and Commerce Clause?

  74. Not only did the CJ choose to rewrite the statute, but seems to have done so precisely because of political pressure to “not politicize” the court. He was more concerned with his “legacy” than the Constitution, and bought into all of the prattle being spewed by Politico et al.

    Reminds me of when Obama went after the court during his State of the Union Address over the corporate donation ruling. That must have stung more than we thought.

    Also, for a reason I haven’t really nailed down yet, I remembered Roberts muffing the swearing in of Obama, whereupon they did it again later in private…or so they tell us.

  75. Progressive left. “The Constitution is a living document that we shall adjust to make whatever we pass as law constitutional.”

    Chief Justice Roberts. “Laws are living things which I shall adjust to make whatever is passed by Congress constitutional.”

    Us. “Living Constitution, living law, we’re all dead.”

  76. A ray of sunshine, since it’s a tax and not a mandate, now.

  77. There was a photo op. They did the swearing in twice.

  78. That’s a good link, Ernst. Thanks.

  79. Not sure I buy it.

    The mandate tax can’t be filibustered, but repealing that only strips the law of the funding mechanism.

  80. It’s a tax and a mandate. Both. Depending on which suits your purposes.

  81. Floor wax and dessert topping?

  82. By the way, CJ Roberts’s “reasonable man” is an illiterate simpleton.

  83. Roberts could have done the same without pretending that he had before him a tax. He pussied out. And in so doing, he has legitimated once again the very kind of misuse of language that I’ve argued for years on a foundational level inevitably leads to tyranny.

    People like Althouse and Erickson, et al., want to argue about how judicial activism in this instance may serve the purposes of constraining government. But I’m against judicial activism in principle. That’s why I highlighted the language I did and dealt with the ruling on the level I did.

  84. A ray of sunshine, since it’s a tax and not a mandate, now.

    Earlier reading made me think the reason reconciliation can be used to kill the bill is because it was through reconciliation that it was established; whether it is a tax aside.

    I don’t know, just saying…

  85. Let’s dance, then.

  86. For those claiming this is really a victory, just how many more victories can we take before there is nothing left?

  87. More happy-spin talk?

    “By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). . . . Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.”

    (via Glenn Reynolds)

  88. As to the substance of what Althouse reviews, yes, she’s right, the ruling recognizes that this can never work without a mandate. But that just paves the way for the destruction of the private insurance industry and the rise of single payer. At some point. Likely, every time the left wins a national election.

  89. They aren’t asleep, they are illiterate idiots.

    Then it’s up to us to educate them. Or at least to deprogram the nonsense the State put in their heads from the time they were young.

    All we need is for one state to push back. Six or ten would be even better. Just a couple of Governors and Legislatures deciding that maybe they won’t let their borders be invaded, or they won’t take their power plants offline and sit in the dark, or they won’t turn over their hospitals to the IRS, or they won’t bail out California.

    People can learn what a Republic really is, and why it’s important.

  90. just how many more victories can we take before there is nothing left?

    A Romney victory?

  91. I’d be glad to have made the trade if in making the trade we hadn’t legitimated the very kind of thinking that will ensure that we’re always in these kinds of battles.

  92. I’m not seeing the merits of the trade. Legitimizing the most massive intrusion on personal liberty–determining how and when your bodily integrity will or will not be affected by medical treatment, the effective nationalization of 1/6 of GDP versus….what?

    A little nibbling pushback here and there, on the margins?

    Sounds like the Rice-a-Roni you’d get for finishing last on a game show to me.

  93. BREAKING – MUST CREDIT FAKE GEORGE ORWELL

    Bombshell: John Roberts consulted the Red Queen in the Looking-Glass before siding with the constitutionality of ACA. Quote: “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

  94. Somebody with way more betterer multi-media skills than I, using Monty Python as a model, ought to do a video of Roberts explaining to the rest of the court why a mandate to engage in commerce is a penalty for not engaging in commerce is a tax in lieu of engaging in commerce.

    Sir Bedevere in the role of Roberts.

  95. Then it’s up to us to educate them.

    Ignorance is generally a problem of desire.

    Education cannot overcome lack of desire.

  96. “Sometimes I’ve believed as many as six impossible things before breakfast. Or judicial review.”

    –Stuff John Roberts Probably Said, Vol. II, as told to Hugh Hewitt

  97. The net result of all of this will be an inexorable consolidation of power in DC. No matter whose particular ox is getting gored at any particular time, it will always be to the ultimate benefit of those who impose the tax.

  98. Precisely, ThomasD. And the underlying hermeneutic methodology being legitimized by the legal reasoning here is what is so troubling, because it enshrines that move toward tyranny.

    Why oh why oh why do people refuse to see this?

  99. “Education cannot overcome lack of desire.”

    Relatedly, I think, some thing x can be taught. Some thing x may not be amenable to being learned.

  100. I like that the Daily Caller has an article by Andy Stern, extolling the virtues of the decision and Obama care- they couldn’t wait a day or two to post it, while some of us settled down. And when I say “I like” I mean Tucker Carlson can kiss my very white ass.

  101. Because thinking is harder than feeling Jeff.

    Won’t it be like falafels and baclava when Romney, Boehner and McConnel stick it to the Dems, ream ‘em out, as it were? Man, I can’t wait for that!

    Winning!

  102. Let’s see… It’s unconstitutional if I call it a mandate, but dandy and glatt kosher if I call it a tax.

    I wonder if this trick works when parsing “mistress” and “wife.”

  103. I doubt Mrs. Roberts has much tolerance for utter horseshit.

    We could probably learn a lot from her.

  104. I really cannot stress this enough. The IRS has been granted de facto police powers to enforce whatever schemes the Congress deems appropriate.

    The States are no more, they are now wholly owned subsidiaries of the Federal leviathan.

  105. a sensing a really interesting levin rant this evening

  106. I think what he did was to clarify the issue. Mandates are taxes. They can be called whatever and they can be defended as falling under the unicorns and rainbows clause, but in the end, a mandate is a tax. Its not unconstitutional to lie, so, if you don’t like the law, fix it.

  107. In the long view I can see only one viable option under the current regime. That would be for the States to preemptively tax their citizens at 100%, thereby denying the Feds any source of revenue.

    It’s either that or blood. And if American history tells us anything it is that we do bloodshed like no one else.

  108. If I may:

    The States are no more, they are now wholly owned subsidiaries vassals of the Federal leviathan.

  109. nr, I’ll be leaving work at precisely 6 pm so that I can listen to Levin on the ride home. I truly hope he doesn’t have an aneurism. I’m worried about my own headache right now.

  110. Let me specify that he did not say this approvingly, but Ed Morrissey just opined on his ustream show that single-payer makes more sense from the standpoint of Congress’s power of taxation. So it begins.

    Also, apparently both Slate and Reason (!) are saying conservatives come out ahead with this decision.

    I have to start smoking banana peels and snorting nutmeg again. The world made more sense that way.

  111. the supreme court needs a new home. nome alaska perhaps.

  112. IRS = TAX

    come on America did you really need the supreme court to inform you that the mandate is a TAX

    did you ever get the feeling you are being cheated… fooled… tricked?

    middle class you now have a new tax …$2000.00

  113. Vassalage wouldn’t be half as bad.

    Vassal states often enjoyed a great deal of autonomy, including keeping their own system of law, and much of their cultural practices.

    Even Charlemagne, who tried to impose some degree of uniformity within his empire, recognized limits to what could be accomplished. So he often found it better to leave the various peoples to their own devices (hereditary lines, rules of inheritance, etc.) so long as they avoided running at cross purposes when it came to the broader interests of the empire.

  114. If Mitt ever says “Read my lips, no new mandates,” I’m off to Lemuria.

  115. Ace lifts his eyelids, however briefly:

    http://ace.mu.nu/archives/330550.php
    The kind of “pragmatism” or “anti-formalism” like we’ve seen today is a slippery slope. It takes onus away from Congress to legislate in a clear fashion and opens up the interpretation of statute to too much convenient second-guessing by the court. This is less about the rule of law than it is the rule of men. Because where do you stop? Why not “read” the law utterly subjectively to be whatever you want whenever you want, depending upon utility in the moment?

    You might want to read a bit of Jeff over here, Acey boy. Learn a thing or two.

  116. What the Supreme Court did today

    By Nathan Mehrens — Today the U.S. Supreme Court in an opinion by Chief Justice Roberts held that the individual mandate provision in Obamacare, i.e., the requirement for most Americans to purchase health insurance or pay money to the IRS, is a tax that was properly applied by Congress.
    The Court held that this payment for not having health insurance was not a “penalty” because it does not punish the individual for an unlawful act, but is instead a use of the tax code to encourage behavior, much like other aspects of the tax code such as tax deductions and credits for certain behaviors and circumstances.

    The Court did hold that the imposition of the individual mandate could not be sustained as part of Congress’ Commerce Clause powers, but at the end of the day the result is the same: those who choose to not purchase health insurance must pay a “tax” to the federal government for exercising that right.

    In a surprising move, the Court ruled 7-2 against Obamacare’s expansion of Medicaid to 133% of the Federal poverty line. The court took issue with the way Obamacare coerces states to accept the new funding levels by threatening to cut all current Medicaid funding for states that do not comply.

    Prior to this ruling, the constitutional limit on Congressional spending was only theoretical. In South Dakota v. Dole, 483 U.S 203 (1987), the Court said that Congressional spending would be unconstitutional if it effectively coerced states into agreeing to a federal program. In that case they ruled that Congress had not gone that far.

    But this is the first case where the Supreme Court has drawn a line in the sand and told Congress that their actions constitute unconstitutional coercion of the states. Says Chief Justice Roberts,

    In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

    The conservative justices on the bench (Scalia, Kennedy, Thomas, and Alito) would have thrown out Obamacare in its entirety solely on this issue. But the Chief Justice, along with Ginsburg, Breyer, Sotomayor, and Kagan, merely severed the part of Obamacare that threatens withholding current funds to states that do not agree to expansion.

    Nathan Paul Mehrens is counsel for Americans for Limited Government and previously served in the U.S. Department of Labor under President George W. Bush.

    To view online: http://netrightdaily.com/2012/06/what-the-supreme-court-did-today/

  117. Ace lifts his eyelids, however briefly:

    Funny. I believe it was he who uttered the “fundamentally unserious” line.

  118. There is a rogue tag bolding away…

  119. The Court did hold that the imposition of the individual mandate could not be sustained as part of Congress’ Commerce Clause powers, but at the end of the day the result is the same: those who choose to not purchase health insurance must pay a “tax” to the federal government for exercising that right.

    snip

    …Prior to this ruling, the constitutional limit on Congressional spending was only theoretical. In South Dakota v. Dole, 483 U.S 203 (1987), the Court said that Congressional spending would be unconstitutional if it effectively coerced states into agreeing to a federal program. In that case they ruled that Congress had not gone that far.
    But this is the first case where the Supreme Court has drawn a line in the sand and told Congress that their actions constitute unconstitutional coercion of the states. Says Chief Justice Roberts,
    In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head.

    Just so I’m clear on this… Roberts will absolutely not, no ma’am, no how, stand for the Feds putting a financial gun to the metaphorical heads of the individual States. But putting a gun to every single citizens’ head if they “exercise” a “right” to not purchase insurance, that’s just the sauciest of awesome, according to Lord High Commissar Roberts.

    Fucking tyranny. The separate States have more liberty than the citizens themselves.

  120. Why oh why oh why do people refuse to see this?

    Why, Jeff, it’s because Roberts was appointed by a compassionate conservative, which means he’s a compassionate conservative too! And why on earth would anyone want to believe a compassionate conservative would do anything that wasn’t both compassionate and conservative?????

  121. ????????????????????????????

  122. I mean it, Jeff. ?????????????????????????????????????????? Feel the moral authority of my punctuation!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  123. Do NOT make me break out the caps lock key.

  124. That wasn’t ace writing, it was rdbrewer.

  125. Ah. Then I take back my surprise.

  126. oops, I thought that was Ace too

  127. Pingback: The Chief Justice’s Ruling: A Gross Expansion of Federal Power | The American Catholic

  128. because John Roberts concluded it was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

    Yes, but if Roberts says it’s a tax, does that compel Congress to treat it as such, procedurally?

    If so, why? Roberts didn’t stick to what Congress said the mandate was, so why should Congress stick to Roberts’s “interpretation.”

    Why oh why oh why do people refuse to see this?

    NRO’s editors see it:

    If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.

  129. Ace would have put more of a dick joke slant on it.

  130. Is it possible that Ace fella’s real name is Andrea Tantaros?

  131. i’ve held holder with contempt since marc rich

  132. Headed out to the car to listen to Levin.

  133. I’m just gonna break out the bath salts and go full Zombie.

    Feels like the right thing to do.

  134. Roberts set a precedent that will be abused by the left (and compassionate conservatives) — that is, the ruling class — forever. And it can’t be changed. It’s precedent.

    There’s his legacy. All these “thinking conservatives” pretending what happened here was a victory, albeit a “political” one, miss the forest for the trees. And yet it is they who drive conservative thought.

    Even today, they’re propping up Roberts in an absurd and obscene way. It’s embarrassing.

  135. It’s precedent.

    time to start smashing it

  136. heh *poof!*

  137. You like that? What did I say in my post this morning? That’s right, I have no interest listening to them or engaging them. I’m their enemy and they mine. I’m nobody’s subject. And especially not the mincing beta males who people that swamp of sophistry and special pleading.

  138. I do like that. I was sitting here counting the seconds. And it’s still funny.

  139. Who went poof?

  140. Oh, wait. Was it yellow?

  141. Pingback: Obamacare individual mandate upheld by John Roberts and his four Left Wing buddies, the bloggers react! « The Daley Gator

  142. Levin really taking George “I fear denim” Will to the woodshed on his disgraceful post today, praising Roberts.

  143. No, it was a trackback. one mississippi, two mississippi, three mississippi, *poof!*

    nice. Or to say another way, my sentiments exactly.

  144. Hey, George Will and Hugh Hewitt and Charles Krauthammer: we didn’t win a fucking thing. And the fact that a supposed conservative Justice upheld this thing is repulsive and depressing, not invigorating.

    It doesn’t teach us the need to redouble our efforts; it tells us that no matter what we do, the ruling class will eventually find a way.

    Retire. It’s time.

  145. miss me yet? – w

  146. I shall value my innocence.

  147. I’ve had various elements of Candide floating through my head the better part of the day. Auto da fe for one. Make our garden grow for another.

  148. I don’t think you can blame W for this. I thought Roberts had a good record and would hang with Thomas and Alito. I dare say most people thought that.

    Reagan gave us a stinker too, but what they do after is on them.

  149. I supported Roberts but I worried about his collegiality and his reverence for stare decisis. Now I worry that he’s the new Sandra Day O’Connor.

  150. I’m actually starting to think Roosevelt had it right, there should be more Supreme Court justices. Say, 50…one from each state.

    One vote shouldn’t transform the country.

  151. The gesture Roberts’ makes nearly rises to Taney levels. I don’t think Taney thought to himself, hmmm, let me kick off a civil war, what say? And put my name into the annals of infamy too, why not?

  152. Now I worry that he’s the new Sandra Day O’Connor.

    Who knows. Maybe he will evolve into wearing dresses.

  153. 2005 coulter

    That will not retrospectively alter the fact that Bush and all the other Zarathustra Republicans cheering for Roberts haven’t the first idea what kind of justice Roberts will be right now. They are telling us their hopes and dreams.

    I share their hopes and dreams! I also hope it doesn’t rain in August. I’m not throwing out all my umbrellas, and I won’t be “proved wrong” in that decision even if the rain never comes. This is a fact: Right now, we don’t know.

    Republicans are desperately trying to convince themselves that Roberts will be different because they want to believe Bush wouldn’t let us down on the Supreme Court. Somewhere in America a woman is desperately trying to convince herself that her husband won’t hit her again because he told her “things are going to be different this time.” (And yes, that woman’s name is Whitney Houston.)

    Bush said “Trust me,” and Republicans trust him. It shouldn’t be difficult for conservatives to convince themselves that Roberts is our man. They’ve had practice convincing themselves of the same thing with Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy and Souter.

    http://archive.frontpagemag.com/readArticle.aspx?ARTID=7786

  154. He alrready is, George.

  155. Legal Insurrection gets it.

  156. Justice Kennedy, who read from the dissent from [the majority] opinion, and he stated quite emphatically that what happened today is that the Supreme Court in effect re-wrote the ObamaCare legislation. In effect, with their opinion, being a legislative court, as opposed to allowing Congress to make that decision.” … What we have bought today in this Supreme Court decision is nothing more than unparalleled economic uncertainty. Because you see at the heart of ObamaCare is a bill that will never finish being written.

    Michele Bachmann, that crazy eyed ex-presidential candidate.

  157. Bush said “Trust me,” and Republicans trust him.

    There’s truth to that. Hell, I’ll even admit I was ready to accept that woman he wanted. Who knows, she might have been better than Roberts.

    All in all, I think appointing a SCJ is a crap shoot. That’s a whole lotta power you’re handing to someone, and as soon as they are installed, they are co-equal to the executive and legislature.

    It’s notoriously hard to predict how any individual human will do with sudden, immense power. One does what one can in guessing, but there are no sure fire ways.

  158. It’s notoriously hard to predict how any individual human will do with sudden, immense power.

    clarence thomas, with a proven track record, was available.

  159. clarence thomas, with a proven track record, was available.

    No, daddy already picked him.

    What do you say about Reagan putting O’Conner on the court? She wasn’t staunch at all…

  160. Oh, and pray for good health and long life for Thomas.

  161. No, daddy already picked him.

    What do you say about Reagan putting O’Conner on the court? She wasn’t staunch at all…

    no associate justice have been elevated to chief justice and w could’ve play the 1st black cj card
    http://en.wikipedia.org/wiki/Chief_Justice_of_the_United_States

    oconner no opinion based on ignorance of her record

  162. no associate justice have been elevated to chief justice

    I assume the word “black” should be in there somewhere, since Rehnquist, Roberts’ immediate successor, was an associate justice appointed by Nixon before Reagan promoted him to Chief.

  163. RGA Chairman Bob McDonnell said, “Today’s ruling crystallizes all that’s at stake in November’s election. The only way to stop Barack Obama’s budget-busting health care takeover is by electing a new president. Barack Obama’s health care takeover encapsulates his presidency: Obamacare increases taxes, grows the size of government and puts bureaucrats over patients while doing nothing to improve the economy.”

    The Virginia governor, who is on Mitt Romney’s list of potential vice presidential candidates, added, “By replacing Barack Obama with Mitt Romney, we will not only stop the federal government’s healthcare takeover, but will also take a giant step towards a full economic recovery.”

    Other governors have urged a similar strategy. Scott Walker, the newly re-elected Wisconsin governor, said that he won’t put into place any elements of Obamacare until after the election. Other governors are taking a similar position.

  164. the no messes meaning

    w could’ve play the 1st black cj card

  165. Which poofter website made the trackback go poof? Just so I can be sure to deliberately avoid it instead of accidently avoiding it for the most part?

  166. “I’m just gonna break out the bath salts and go full Zombie.
    Feels like the right thing to do.”

    The face eating guy turned out not to be on bath salts after all. Maybe he just read a Hannibal Lector novel and decided to LARP it.

  167. I’m so mad my tits are barking.

  168. “Hey, George Will and Hugh Hewitt and Charles Krauthammer: we didn’t win a fucking thing. ”

    Let Dick Morris know too. He’s signed onto the big ‘stupid party’ talking point.

  169. punning it Ernst: Leerers, Gums and Mummsy

  170. I’ve been at work frothing all day …

    This is a huge wakeup call that as limited-government, pro-Liberty types we should never ever rely solely on the courts.

    That’s just a fool’s game as bad law isn’t necessarily unconstitutional (general observation, not necessarily here because Roberts had to hand his decision on an argument not made AND conclude the ObamaTax is not a direct tax either)

    We must win this in the political arena. I’m going to be working on the Elizabeth Emken campaign here in CA, even if it smacks of tilting at windmills

  171. ok but if you’re gonna eat a face why pick some dirty homeless guy?

  172. my favorite idea for romney if he wins and has a republican majority in the senate and house is a repeal bill that says the supreme court has no jurisdiction on this bill. john roberts fu.

  173. So did Jeff make the trackback go *poof* then?

    I was thinking one of our smart pragmatic voices on the right didn’t want people getting the idea the Jeff was three steps ahead of most of them.

  174. ok but if you’re gonna eat a face why pick some dirty homeless guy?

    yea really white meat

  175. To your question, yes, I think so. Didn’t take long, as I noted. And is still funny, to me anyhow.

  176. We must win this in the political arena

    Not sure this can be won in the political arena.

    Short of a widespread and thoroughgoing reordering of our polity, that is. There’s a century’s worth of crudescence to cleanse.

  177. “Not sure this can be won in the political arena.”

    Ernst, as I commented to Jeff’s portrait of an Obama victory owing to this sham of justice, seems to me either natural right is something, and if something, then something that will out, if only because people actually can’t rid themselves of a sense they’ve been wronged.

    Or if it’s nothing, then we’ve been chasing a phantasm all along, haven’t we?

  178. Gotta split for an hour or so.

  179. We must win this in the political arena

    Good luck with that.

    Our “political arena” is likely to tax your flatulence, now that the EPA is all established and sanctified. And passing on the Beano might get you crossed up with the IRS.

  180. You can’t win if you don’t play.

  181. You can’t win if you don’t play.

    Precisely backward. Refusing to play is the only way to win.

  182. punning it Ernst: Leerers, Gums and Mummsy

    No surprise there. What was surprising was that SEK appeared to have half a clue on the Kimberlin thing. Appeared and half being operative there.

  183. We all choose our own battles and our own weaponry. Right now my weaponry is the ballot box and my battle is a potential Senate seat.

  184. Right now my weaponry is the ballot box and my battle is a potential Senate seat.

    good luck with that

  185. Thanks Newrouter

  186. Right now my weaponry is the ballot box and my battle is a potential Senate seat.

    Ever notice that Senators are a lot like SCJ’s? Once installed, they’ll likely forget where they came from, and are nearly impossible to get rid of.

    What you got is the ballot box, true enough. Rage against the machine.

  187. But don’t forget the soapbox and the cartridge box.

  188. The soapbox is obsolete. Go straight to earbox.

  189. yea so if we get romney and the rethugs win we got this:

    In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    http://www.law.cornell.edu/constitution/articleiii/

    we could tell roberts to go eff himself but the orange guy would cry. oh well.

  190. Term limits for everyone, including Supreme Court Justices, who should probably face retention referendums as well. Repeal the 17th Amendment. I also think it’s time to revisit nullification.

  191. Lee, I don’t know about that. I’ve seen a popular Max Cleland brought down by a relatively unknown Congressman because GA was ready for a GOP Governor and Chambliss rode in on those coattails.

    In FL Nelson is being hammered almost daily because of his votes for ObamaCare. He is leading now but the GOP hasn’t settled on his opponent and won’t until August. I expect the polls to narrow at that point. In the last election, FL elected a GOP Governor and Sen Rubio. Hopefully the trend continues.

  192. Hopefully the trend continues.

    If the current national trend continues much longer, China is going to be telling us to ease up on the redistributive, social justice crap ‘cuz it’s bad for business.

  193. We all remember China is commie I trust…

  194. I’m not going to lie: I’ve been seriously short the last couple fundraisers and, though I know times are tough, I’m worth the contribution. Otherwise I’m going to have to give up my scalping business and go to work at 7-11.

    If you’ve been faithful to this site, you’re on the cutting edge of what’s what. You were prepared to understand how fundamentally wrong was this decision and why. And that matters when I’ve been frozen out by just about every fucking place on the right — mostly because I call them out, and partly because I’m a dick.

    But an informed one. Who passes it on, without prejudice. Let’s admit that, at least.

  195. I’m not playing at anything. But if SCOTUS decides something wrong (Dred Scott? Kelo? hello?) then it is up to the citizenry to correct it.

    Not that citizens get it right all the time either (Prohibition)

    Democracy is based on the assumption that a million men are wiser than one man. How’s that again? I missed something. Autocracy is based on the assumption that one man is wiser than a million men. Let’s play that over again too. Who decides? ~~Robert Heinlein

  196. mostly because I call them out, and partly because I’m a dick.

    york?

  197. you’re on the cutting edge of what’s what. And that matters when I’ve been frozen out by just about every fucking place on the right –mostly because I call them out, and partly because I’m a dick.

    If I couldn’t call you a dick, I’d have to call you a cunt…and that would be imprecise by any measure.

    Seriously, those places on the right you mentioned, may as well be at a quilting bee. They aren’t used to testosterone, and it confuses and frightens them.

    Do what you feel is your duty as a man and American, and let the women quilt.

    Is my two cents.

  198. hit the freakin’ tip jar.

  199. the bank site says your check is mailed 7/5/12. you’re worth more than beck for a year. keep on keeping on.

  200. well you know what? this makes it even easier for me to ignore the election this fall. I was not going to vote for Romney, and now that it looks like Obamacare and higher taxes are our destiny, there’s even less reason to vote.

  201. Another told you so from someone we know:

  202. There’s gotta be somebody down ballot worth supporting.

  203. let the women quilt.

    You think all of them were quilting during the revolutionary war? settling of the west?

  204. “(that, and because I’m an asshole),”
    AND
    “partly because I’m a dick.”

    Jeff,

    I’m glad you seperated those references with a couple hundred other comments;)

    Though I’m not gonna be able to bring myself to reasure you by stating that at least you’re our ____ n _______.
    So you’re just gonna have to live with some other kind of contribution.

    AND KEEP FIRING!!!

  205. You think all of them were quilting during the revolutionary war? settling of the west?

    Ma’am NO! Ma’am.

    Wait, are we still talking about right wing blogs?

  206. Otherwise I gotta say yes. A warm quilt was very important during revolutionary times, and Bed Bath& Beyond wasn’t open yet.

    But Hey! One of’em made the flag!

    That was awesome.

  207. Quoting Krauthammer:

    “That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.”

    This is utterly incoherent to me, if Dr. K means to assert that Roberts’ rewriting of the law is not the ultimate act of hubris and arrogation of power on its face, achieving precisely the opposite result from the intention Krauthammer seems to wish to attribute to Roberts. How, after all, does one ‘esteem’ such a power grab? Or for that matter, such an absurd rationale?

  208. Pish-posh Sdrerr, philosophical conservatives always talk about the legality of taxing inactivity. And re-wording the legislation they are ruling on, if they happen to be a philosophical conservative judge.

    What’s the problem?

  209. Also, as Levin pointed out, just because the supreme Court has ruled legislation unconstitutional 169 times before, doesn’t mean a philosophically conservative judge can make such a activist ruling on a 170th.

    It would be unseemly.

  210. What Roberts did was to make an activist reading of the law:

    Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition–not owning health insurance–that triggers a tax–the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income[!]. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

    One of these things is not like the other ones, one of these things doesn’t belong; but that’s not important right now. What’s important is that Robert’s judicial activism was in the service of the principle of judicial restraint: The court is going to defer to the elected representatives of the People. If they want to pass stupid laws, that’s the People’s problem to solve, the Court is not in the business of judicially ratifying legislative policy preferences.

    Except when it is. And this was a fucked up way to try to resestablish judicial restraint, straw clutching in order to end straw clutching, as it were.

    What Roberts has done is to signal that there will be no rollback of the Progessive agenda via the courts. The ratchet remains intact.

  211. From that Nathan Mehrens fellow Jeff quoted earlier:

    The Court held that this payment for not having health insurance was not a “penalty” because it does not punish the individual for an unlawful act, but is instead a use of the tax code to encourage behavior, much like other aspects of the tax code such as tax deductions and credits for certain behaviors and circumstances.

    Except that isn’t what Congress did, because (and maybe I’m wrong, not being a lawyer, and thus unable to opine with authoriteh) Obamacare isn’t a tax law, is it? And anyways, if Congress wanted to “encourage behavior,” like say, for instance, encouraging you to buy health insurance, they could have just made your health insurance tax deductible.

  212. Richard Reinsch: A Tax, Not a Penalty

    It’s brief, and mostly quotes the Scalia(?) dissent.

  213. Going back to Mehren for a second, the rest of the tax code doesn’t encourage behavior by making you pay more if you decline to participate in the encouraged behavior. (e.g. no tax credit for you if your childless, but they don’t charge you and extra $500 for not having one).

  214. I like libertarian jerry’s 17:35:09 comment in the post sdferr linked.

  215. For all you Galt going contemplators out there, I’m willing to teach your crumb-crunching munchkins Latin and German in exchange for booze.

    The better the hooch, the better my instruction.

  216. Pingback: Michele Bachmann: It Only Takes 50 Plus One Senators to Repeal Obamacare (Video) | FavStocks

  217. Pingback: LIVE AT FIVE: 06.29.12 : The Other McCain

  218. And that matters when I’ve been frozen out by just about every fucking place on the right — mostly because I call them out, and partly because I’m a dick.

    Do what thy manhood bids thee do, from none but self expect applause;
    He noblest lives and noblest dies who makes and keeps his self-made laws.

    Sir Richard Francis Burton 1821–1890

  219. Even if all the silver-lining guys are right, the best that can be said for what Roberts did is, he gamed the ruling to help bring about a desired political outcome.

    If a 5-4 ruling striking down ObamaCareTax would have been a blow to the Court’s legitimacy, what does that make this?

  220. A warm quilt was very important during revolutionary times,

    Yep, hid the gun underneath it …

  221. Bill Bennett talks to David Rivkin, who represented NFIB, among others. Access top right here.

  222. Shit. Listen to Nancy Pelosi. I just heard Beck broadcast this clip. Honest, this woman needs to be retired.

  223. Rivkin is speaking (with a panel of people) on the ACA decision at Georgetown Law Center right now.

  224. Pingback: Obamacare Ruling: Abuses And Usurpations « The Camp Of The Saints

  225. It’s occurred to me that if Roberts did game this ruling, the other justices know it, and their respect for the Chief will have been adjusted accordingly. The very next time either the Commerce Clause or the Necessary and Proper Clause come up for interpretation, all Roberts’ too-clever-by-half maneuverings to set the precedent while also keeping ObamaCareTax alive as a campaign issue, could be shot to hell, and the next attempt to impose an individual mandate, with penalty, could actually have Commerce Clause cover as a result.

    And that’s all assuming Congress doesn’t decide such maneuverings aren’t a violation of the “good behavior” qualification for Supreme Court justices.

    If that’s what happened. And if it is, God alone knows whether the good will ultimately outweigh the evil. Roberts couldn’t, and we can’t, and that’s why we have this saying about the ends not justifying the means.

  226. “It’s occurred to me that if Roberts did game this ruling, the other justices know it, and their respect for the Chief will have been adjusted accordingly. ”

    I attempted to imagine his relations with the four dissenters yesterday. No matter what Roberts’ intentions, frosty was the best I could come up with. Held at arms length as one would do with a psychotic, at worst.

  227. Here’s what I think happened: Roberts went the direction he went, because it allowed him to write a broad opinion that essentially put a stop to the use and abuse of the Commerce Clause. Roberts also moved to re-assert the Tenth Amendment rights of the States.

    (I am in no way excusing this ruling, because, as Jeff said, it is still an activist ruling and judicial activism is wrong, no matter which way it goes)

    I tend to think Roberts would rather have gone for the trifecta of States Rights, limiting the use and abuse of the Commerce Clause and striking down Obamacare.

    However, trying to do all three was probably a bridge too far for Justice Kennedy, which means Kennedy moves to the other side.

    Yeah, this is an ugly ruling, but consider the consequences of a Kennedy, Ginsburg, Sotomayer, Breyer, Kagan ruling.

    (I’m going to go lay down now, because I just sickened myself)

  228. Roberts pretty much negated Commerce Clause concerns by granting the government the power to do any damn thing it pleases by forcing compliance via “taxes”.

  229. This ruling will not establish any precedent to limit the commerce clause as the left only follows precedent that enables more power to flow to the government to advance their progressive schemes.

    What I want to know is who put the dead pelican in his bed on the 17th?

  230. Pingback: Let me address this idea that John Roberts bravely and with humility saved the Court and the Union — all while fashioning a cunning victory for classical liberalism and federalism | protein wisdom

  231. geoffb, dicta don’t count for dick.

  232. Pingback: BEST OF THE WEB! WEEKLY POLITICAL ROUNDUP OF GREAT POLITICAL COMMENTARY COMPILED BY BLOGGER JENNY HATCH « THE NATURAL FAMILY BLOG, an online journal written by Jenny Hatch

  233. Pingback: Excuse Me, But May I Interrupt for a Couple Minutes? : The Sundries Shack

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