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Obamacare Ruling: Abuses And Usurpations [Updated Below]

29 June 2012 @ 10:23

-First off: the fine imposed on individual citizens who do not sign-up for health insurance is not a tax, and no attempt to portray it as such passes the smell test of Reason. A is A — you can call it B and dress your logic in whatever garish clothing you want to, but it will A will always be A.

In his declaration that a penalty is merely a tax, that the logic put forward by the drafters of Obamacare that this fine was a punishment to be imposed on those who were acting selfishly, Chief Justice Roberts denies Reality and saves the life of the Left’s terminal argument in favor of a Socialist Health Care System. He’s a bloody miracle worker. Sign him up for Sainthood immediately.

Jeff Goldstein eviscerates the Chief Justice and it is a Goddamn thing of beauty to read:

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 comes 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, they have 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 their 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?

Woah-Ho-Ho, It’s MAGIC!

None of us on the Right, of course, expected Ginsburg or Breyer or Kagan or Sotomeyer to apply Right Reason to this case. They are solid, dependable apparatchiks of the Left, under the self-imposed spell of an ideology that demands one reject anything that stands in the way of achieving the Leftist end of Heaven On Earth. As Quin Hillyer writes:

If anybody truly believes that all four of the “liberal” justices really believe the tax argument, rather than just grabbing onto it because they saw Justice Roberts would thus give them a means of reaching the result they want, then that person is gullible beyond belief. Not one of the liberal justices seemed to take seriously the tax argument when it was raised (with regard to the AIA) in oral argument. The libs clearly are prostituting their interpretive approach in order to reach the political result they want.

John Roberts, however, is not a Leftist drone, yet he obviously has acted in a way that brands him as a Useful Idiot and Dupe of the Left. He may think he pulled a fast one or that he’s preserving the integrity of the SCOTUS, but the Left is laughing at him behind his robed back and celebrating their capture of another Right Wing Dupe. This decision will not restore the image of The Court. In fact, it sends a message that the Chief Justice is willing to sacrifice The Constitution for the sake of a facade — the political image of SCOTUS in the public’s mind — and this will, perhaps fatally, damage the reputation of the SCOTUS in the eyes of the Right — the only group that respects The Court and it’s place in The American Experiment. If, however, Roberts believes what he wrote, then one cannot be blamed if he questions the mental health of the Chief Justice.

By stating that the Congress has an unlimited power to tax, Chief Justice Roberts and the Leftist Justices have declared that The Constitution does not mean what it says and that the Congress need not concern itself with enumerated powers when it comes to using the taxing power, which, as many wise men have pointed out over the centuries, is the power to destroy.

I’ll have more of my analysis in an Update later on this afternoon or early evening — obligations in RealWorld™ call.

UPDATE at 2139…

-In an e-mail to Kathryn Jean Lopez, Mark Levin demolishes the argument being made by some on the Right that, ‘Hey, at least there’s now a restriction on the Commerce Clause ’cause Roberts got the four Leftists to go along with him on that one’ [emphasis mine][worth quoting in full]:

This may seem a little technical, but it is not a minor matter. A number of politicians and commentators are claiming that the Supreme Court in the Obamacare case “limited” the reach of the commerce clause, i.e., five justices held that individuals cannot be mandated to buy insurance under the commerce clause. Actually, the five justices did not limit anything. They simply did not accept the Obama administration’s ridiculous argument that inactivity is commerce. The status quo stands because Obamacare was upheld under the tax provisions. However, the bigger point is this — when a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).

But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority. Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is not labeled as “dissenting in the judgment, concurring in part” or some permutation.

You cannot say it was the “opinion of the court” that the mandate violated the commerce clause. You have to cobble together sections where Roberts is writing for himself and the dissent (which did not formally join with Roberts), is writing for itself.

In fact, Justice Thomas, in his separate dissenting opinion, wrote:

“The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”

Notably, this does not explicitly state that the dissenters joined with the Chief’s opinion respecting the commerce clause. If five justices had intended for their view of the commerce clause to be controlling as the majority view of the court, they would have said so by joining or concurring in each others’ parts. They didn’t. There was no formal majority on the commerce clause issue. Should this matter come before a court again, it is not settled as a matter of precedent and no doubt the litigants will still be fighting over it.

Now it is understandable that some people, on their initial reading of the Opinion got this wrong.  After all, the Syllabus is confusing [it often is when the Justices agree in part, concur in part, dissent in part, park in park, etc.], but any close reading, as Mr. Levin has done, reveals quite a different situation, one, in this case, that makes this ruling even more dreadful.

There was no restriction placed on the Commerce Clause yesterday.

The Chief Justice spoke for himself, alone.  The four dissenting Justices, for whatever reason, did not join with him on that part.  Perhaps the four Leftist judges made it clear they would not join the CJ in the other parts if he let the four dissenters join him in putting restrictions on the application of the Commerce Clause and he was so determined to protect the reputation of The Court, as he saw himself doing by joining the Leftists, that he was willing to reject the concurrences of the dissenters.  This is pure speculation on my part.  The fact is, as Mark Levin clearly shows, the bloated definition of the Commerce Clause remains.

-I’m going to pause here to issue a warning: We know that the Left is spinning a false Narrative on this — they always do — but beware of those on the Right who, in their desperate and, frankly, pathetic hope-against-hope, rose-colored silver-lining search for something positive, are seeking to delude themselves and you that this decision is anything but a complete, utter, and total defeat for those of us who believe in The Constitution.

-In the first item of this post, I dealt with one aspect of the Chief Justice’s declaration that the penalty for not having insurance [aka: the Individual Mandate] was, in fact, a tax.  There’s another aspect that the four dissenters remark on [as written by Justice Scalia][the HTML version is here]:

And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s “Revenue Provisions.” In sum, “the terms of [the] act rende[r] it unavoidable,” Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in 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 Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

If we accept the fantasy that the penalty is actually a tax, then the Justices in the majority were compelled to strike it down because the version that was passed by the Congress and signed by the President originated in the Senate — a body that cannot under The Constitution introduce revenue raising bills.  But, what the Hell, since they’re using mystical magic to concoct their rulings anyway, why quibble over insignificant matters like provisions in The Constitution?  While none of us in our right minds expect the four Leftists to be anything but slaves to their Ideology, it certainly is a Grand Disappointment that Chief Justice John Roberts has decided that his petty concerns far outweigh his duty as an American to preserve, protect, and defend The Constitution Of The United States Of America.

And the thing is, as Mark Levin writes in a response to George Will’s badly-reasoned column of 28 June [emphasis mine]:

There were four votes to strike down Obamacare, rejecting the Democrats’ attempt to expand the commerce clause to include inactivity. If Roberts had joined the other four, the entire law would have fallen, including the preposterous attempt to expand the commerce clause. Roberts saved Obamacare on concocted CONSTITUTIONAL GROUNDS by making a truly incoherent argument that the penalty provision being a tax, despite all evidence to the contrary. Moreover, it is not a tax under the Constitution — not a direct tax, not an excise tax, not an income tax. That’s why Roberts was unable to apply any of those taxes to the penalty in any rational way. Thus, regulating inactivity is out (for now, as the four liberal justices were prepared to expand the commerce clause), but taxing inactivity is in, even where Congress insists it is not taxing but penalizing, and even where the tax/penalty does not meet any of the definitions of permissible taxation under the Constitution. The civics lesson, Mr. Will, is that Roberts’s arguments are specious and an example of absurd judicial activism. (I note you defended judicial activism the other day, but you confused judicial review with judicial activism, a matter I can take up another day, assuming I care to.)

Roberts and the other justices had a duty to strike this law because it is not supported by our history, the Constitution, or reason. Roberts had to rewrite the statute, alter the penalty provision, and make a mess of the federal government’s taxing powers to get where he wanted to go.

By the way: a tax, by it’s definition, is a compulsory levy imposed upon the citizens of a country by it’s government solely in order to raise the revenue it believes it needs to carry out it’s proper functions.  Anything passed as a tax that seeks to do anything else, like, say, punish someone for doing something or for not doing something is not a tax, but a fine, a penalty imposed in order to cause the transgressor to suffer a monetary loss.  Therefore, to call such a fine a ‘tax’ is to deny Reality and break the law.

Daniel Foster has come up with a brilliant name for the new doctrine espoused by the Chief Justice:

The law’s defenders, with a massive assist from the Chief Justice, have established a standard by which a law can with full constitutional protection say one thing and mean another. I suggest naming this the Ex faslo quodlibet standard in future Supreme Court jurisprudence. That’s the Latin phrase (“from falseness, anything follows”) that describes a peculiar feature of classical logic: Once you’ve established two inconsistent premises (e.g., the mandate both is and is not a tax), you can derive literally any conclusion you like.

Our response to this doctrine should be: Sic Semper Tyrannis.

-Regarding the fact that The Court ruled that behavior can now be taxed, let me quote Rush Limbaugh:

…Even if this is repealed, if any tax increase that’s happened in the past is repealed, the precedent has still been set now. The court got out of the way. There are no limits, folks, on what can be taxed, because this essentially is the federal government being granted the permission to tax behavior. This is the federal government being permitted to tax choices that you make, if you don’t make the right one. So essentially your choice now costs you….

…the caller had it exactly right, the precedent has been set, that there is no limit on what the government can tax.

In fact, the court went looking, the court went mining for a way to make this possible. The notion of a limitless expansion of the power of the federal government was affirmed today by the Supreme Court of the United States. And that’s why there’s so much spiking the football on the left. And that’s why there is such happiness, because they know what this decision ultimately means. When the federal government has the power to tax behavior, there is no end to what can be taxed. And that’s what Obamacare was always about from the get-go. Obamacare is not about health care for the uninsured. It’s not about improving health care. It’s not about insurance. It’s about the limitless expansion on the federal government and the federal government’s ability to exert behavioral control over the American people. And the reason they sought health care as the vehicle for that is that you can virtually tie any expense, any behavior to health care expense.

You can tax the way people eat. You can tax whether or not they exercise, whatever old wives’ tale you believe about health. And I just ask you to consider all the things you heard the last 30 years, things that you should eat, shouldn’t eat, to prolong the length of your life or that will curtail the length of your life. Imagine the federal government having the power to tax all of those things. Just use the oat bran example. Twenty years ago, oat bran was the single healthiest thing you could eat. Imagine the federal government, some wacko liberal at the FDA or at Health and Human Services, then deciding because some research survey has just said oat bran will make everybody live ten years longer mandating that everybody go eat it, and you don’t.

Why do you think there are thousands of new IRS agents? Why do you think that’s part of this bill? That’s a pure police force enforcement mechanism. But that’s what health care has always been. Obamacare has always been a stealth way for behavioral control over the American people. Sixteen thousand new IRS agents….

I believe this is what’s called a ‘fundamental transformation’.

This ruling, as Justice Kennedy warned during the Oral Arguments, ‘changes the relationship of the Federal Government to the individual in the very fundamental way’.  We are now subjects to the new Sovereign: the state.  We no longer will be able exercise our Free Will when the government decides doing so is not in their best interests [of course, they’ll word is as being ‘best for society’].  The old Sovereign, the people, is dead – Long Live The New Sovereign!

Jeff Goldstein [emphasis mine]:

In other words, the Court has told us that in a country born of a revolution against a centralized authority, the Constitution resulting from that revolution requires that we are subjects to a centralized authority.

Small businesses just died. The free enterprise system just died. And worst of all, liberty just died. The SCOTUS has all but ensured either insurrection or slavery.

I have no desire or need to debate with leftists any longer. My only function now will be to resist. And I’ll know who to resist by way of watching who celebrates this ruling, the Arizona ruling, and the EPA ruling.

A coup, as I’ve been saying. And it was secured, ironically enough, by a so-called “conservative” Court. Forward!

Guess we’re all Hobbits now.

What we witnessed yesterday was nothing more than another stop along the line of ‘a long train of abuses and usurpations, pursuing invariably the same Object evince[ing] a design to reduce [all Americans] under absolute Despotism’.

We are moving closer to the moment when we will have to declare again:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

That’s a choice no court or congress or executive can take away from us.


-I may add more to this tomorrow in order to keep my analysis together in one place.

  1. 29 June 2012 @ 11:58 11:58

    So if we start calling dog poo ‘fudge’ will it taste like a yummy chocolaty treat? (H/T Stinton Jarlsberg Hope N Change cartoon)

  2. theebl permalink
    29 June 2012 @ 13:45 13:45

    You are a real voice in the wilderness.

  3. Gatordoug permalink
    29 June 2012 @ 17:37 17:37

    Hey Bob, got you linked in a post I am doing now, also, please have a listen to my podcast commentary I did yesterday on Roberts cowardice

  4. Adobe_Walls permalink
    29 June 2012 @ 17:50 17:50

    Well it isn’t as if we didn’t already know that we needed to abolish the Supreme Court and it’s lower courts. Now before everyone leaps from their seats in joyous acclamation of that idea I must caution that that action may prove impracticable. Perhaps what we need is a “Designer” court, we on the right need to start playing to win when and where it comes to judicial appointments as opposed to what we are doing now which is playing to be seen as playing by the rules, something we never get credit for anyway.

    “….they have 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 their intent to imbue it with a meaning that it didn’t have upon signification ….”

    That is exactly how the court has been ruling for the last century and it’s got to stop.

  5. Rosalie permalink
    29 June 2012 @ 18:02 18:02

    Roberts deserves to be eviscerated.

  6. M. Thompson permalink
    29 June 2012 @ 18:44 18:44

    Enough about the complaining. There’s elections to win. The embers are there, add fuel, and a great boiler will soon be producing vast amounts of power.

  7. 30 June 2012 @ 09:17 09:17

    Stupid question, but I am not as well educated as most of you and also, Lyme Brain, so please just answer it if you can without making fun of me for being dumb:
    Can this decision be appealed at all? If so, are there any lawyers looking into it and filing papers or whatever to make that happen?

    • Adobe_Walls permalink
      30 June 2012 @ 13:47 13:47

      Not directly though it can be overturned or more accurately replaced. Much has been made of the language stating that the mandate was not constitutional based on the commerce clause. As professor jacobson wrote another court even an inferior court could ignore that part of the ruling because it’s not necessary to the decision.

      All in all a poor bit of adjudicating .

      • 30 June 2012 @ 15:57 15:57

        The Commerce Clause part of the Majority Opinion was solely the opinion of the CJ with the four dissenters refusing to join him, so what he wrote about the Clause is meaningless, carries no force. As Mark Levin explained it:

        However, the bigger point is this — when a court issues an opinion, it is said to be the “Opinion of the Court.” The Opinion of the Court is the controlling precedent. Chief Justice Roberts wrote the Opinion of the Court for Parts I (background on the Obamacare law), II (the Anti-Injunction Act is not a bar to the lawsuit proceeding and being decided) and III-C (Obamacare is valid under the tax power).

        But respecting Part III- A, the commerce clause and necessary and proper section, the decision notes that Roberts is writing for himself, not for a majority. Furthermore, the Dissent is labeled as: “Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, dissenting.” It is not labeled as “dissenting in the judgment, concurring in part” or some permutation

        If the Dissenters had written ‘concurred in part’ and referenced Justice Robert’s writings on Part III-A, then the CJ’s remarks on Part III-A would have been part of the Ruling and, therefore, have the force of law. As it stands, for whatever reason, the four dissenters decided not to join [concur with] the Chief, so what he wrote about Part III-A means nothing.

    • 30 June 2012 @ 15:45 15:45

      The decision itself cannot be appealed. However, the law itself, or parts of it, could be challenged again.

      It’s not a ‘dumb’ question, Mare.


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