Jun 29 2012

Chief Justice Roberts’ Mad Contortions

Published by at 8:46 am under AJStrata's GUT

All I can say about yesterdays ruling from the USSC is we now know for sure the only way to fix our economy and country is to dismantle the federal behemoth.  I don’t have a clue what drove Roberts to apparently switch is vote and let stand a ‘punishment’ tax for not procuring a specified element of commerce, but whatever it was borders on madness.

In what some have excused as an act of trying to not be a political, Roberts allowed politics to completely twist simple guiding principles into a incoherent mess. Supposedly the Commerce Clause was a step too far to impose commerce, but tax penalties are not???

And this was never a tax bill. Some have given the ludicrous excuse that by gutting a House Tax bill and filling it’s Congressional Tracking Number with Obamacare contents never once voted on by the House this was a way around the constitutional requirement. Sorry Allahpundit, but this is pure idiocy. If all it takes to get around constitutional law is a new cover on the legislation then we should toss the whole Constitution in the trash. This kind of excuse is what I expect to hear out of 5 years olds, not serious adults.

Roberts was overtaken by some pressure or inside-beltway nuance that, when viewed from the clarity of Middle America, is transparently warped. I have never seen such a crock. Anthony Kennedy seems to have penned the only cogent assessment of Obamacare overall. I will let reader Mara Harley’s comments fill out what how I feel about this mess (emphasis mine).

All but Ginsberg (in her supplemental) agreed the Commerce Clause was an constitutional overreach of Congressional authority… the only brief candle in a sea of dark in this.

Majority plus Roberts own opinion then turned to the “was it a tax” argument. The Chief Justice engaged in judicial contortionist manuevers, using precedents that when there can be two interpretation of a law, one of them being constitutional and the other not, the High Court must examine the end result of the law, within what authority exists, even tho Congress erroneously ID’d it’s power or intent in the legislation itself. (see pg 37 of the doc). Or:

And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning thatdoes not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule issettled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

Thus had Roberts not considered this precedents, we’d all be having an entirely different conversation.

This is where the dissenting judges argue differently. First, the Commerce Clause infringement, plus the overt intent of Congress by putting the mandate/penalty in Title I of the Act, instead of Title IX of the Act where the revenue provisions reside, was effectively the nail in the coffin. It is not the judiciary’s responsibility to correct Congressional errors in legislation.

Speaking of correcting their errors, the dissenting judges took issue with the unconstitutionality of Sebelius withholding funds, or coercing the states, INRE the Medicaid Expansion. Roberts stated that could be corrected if they did not withhold the funds, since it didn’t alter the Medicaid program in it’s existing form.

The dissenting judges argued that judicial remedy is chutpah (obviously, my own applied term… LOL), and that when that provision was unconstitutional, it should be struck as a whole.

There is only one other small, weak battery flashing beam in this… on pg s 48-50, Roberts does issue a warning (with citation) that even the taxing power has limitations, stating that the “the power to tax is not the power to destroy while this Court sits.” At this moment, the amount being discussed does not meet that threshhold, but it certainly was left open should Congress…as they always do… attempt to abuse that taxation power as it relates to this psudo “tax” that was really a “penalty” in legislative intent.

All in all, Roberts may have good citations to justify his hunt/peck to bail Congress out of their own deplorable legislative construction. But this whole things sucks

I have been blogging about politics for coming on 7 years, and prior to that was immersed in heated discussions on the subject on various boards and forums for as along as I can remember. But now I have come to the conclusion “politics” is our cancer. As currently constituted, our government is completely dysfunctional and isolated from the citizenry. It lives in a fictional world and spends 90% of its energy trying to short cut the rules and collect power. The money apparently ain’t bad either. Some become ridiculously wealthy fleecing not only the taxpayers, but the descendants of the taxpayers for generations to come (just realize this is what today’s debt is, your children’s tax burden to make the powerful rich).

This is just the next glaring beacon to indicate why we need to tear down the federal beast. No more marginal efforts, promises of future fixes. No more deficits. No more free rides for endless failures.

America is better than that. We need to fire the lot of them and start over.

17 responses so far

17 Responses to “Chief Justice Roberts’ Mad Contortions”

  1. ivehadit says:

    Right on! And I stand with the Tea Party for the long haul.
    I hope they make 2010 look like a Nick Saban warm up…

  2. patrioticduo says:

    The Supreme Court just proved that all three branches of the United States Federal Government are political through and through and have long ago forgotten that they were to be restricted and small. The challenge then is to remain libertarian in a world surrounded by socialist people and organizations. The Federal Gov. the States, local Gov. Unions, the system, the bureaucracy, leviathan, call it what you will, is in your face no matter where you turn, no matter where you see, hear or feel. The beast wants to grind us all down, turn us against each other, succumb to the parasitic blood sucking construct that will ultimately put us all in the grave poorer and much more unhappy than we ever would have been if most of what we do had been allowed to happen through our own devices, voluntarily and freely hard working together as independent spirits.

  3. Mata says:

    AJ, I’ve been thinking that Allahpundit’s was a desperate track to take (tho he’s not the only one screaming “foul”), by portraying this as not originating in the House. On a technical level, that’s not true since the law is from HR 3590.

    Nor is it true in the technical sense that the Senate passed it before the House, as the House passed their version in Oct, and the Senate’s changed (and mostly gutted) version in December. Remember the House then voted for it with the promise of the reconciliation changes the reluctant pro life Dems demanded? Nor was the House unaware the Senate did a lift/paste on their original bill.

    Was it sleazy beyond compare? Of course… and there was no lack of public complaining about the process even then. But to say that this didn’t originate in the House when it went through, using legitimate (if not scuzzy) Congressional rules, is embarrassing sour grapes.

    Per our Constitution, Congress makes their own rules for the chambers. They followed their rules. And only they can change their rules. Ironically, we can’t even “tear down the federal beast” unless these same corrupt, power hungry career politicians agree to do it.

    I don’t see anything wrong with our system, AJ. But I see everything wrong with those who make their life long careers in our system, becoming corrupt for personal agendas that do not coincide with the nation’s wishes, or it’s benefit. If you can’t change the scuzzy rules, you have to change the players who make the rules. I’d certainly like to “clean House”, and “clean Senate”, starting over with idealistic and pure of heart Constitutional freshman (if they make any…). But over time, even they will become corrupt.

    Tho I side with the three dissenting judges INRE the tax/penalty argument, and a complete striking of the Medicare Expansion, I really can’t fault the Chief Justice for his own opinion, simply because it doesn’t agree with the others (or mine). That’s just the way our court works.

    Even giving weight to the “two interpretations” precedents, I do think that the undeniable intent of Congress – both in the legislation itself and the public sale of this monstrosity – should have tempered any “benefit of the doubt, in spite of their stupidity” type judicial scrutiny. None of the lower courts ever entertained the merits of the mandate as a tax because Congressional intent was abundantly clear in all aspects. What they did say is that had it been constructed as a tax to begin with, it was likely to fall within their authority.

    While I can’t say that Roberts practiced absolute judicial legislating and activism because of respectable precedent reasoning in his conclusion, it can be argued he danced on the fence above that devil.

    The SCOTUSblog has an excellent round up of analyses that I recommend reading for many perspectives. Robert Alt from Heritage has a piece there, but what struck me as a memorable overview of the mixed bag, and a stellar final line to remember, came from Jonathan Adler’s “Lose the battle, win the war?” offering;

    [Opening paragraph:] For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a disappointment. Yet for those who hoped the Court would reaffirm that the Constitution creates a federal government of limited and enumerated powers and that it is the responsibility of the Court to enforce such limits, there is much to like in today’s decision.


    [Final paragraph]: The Court decided this case, but it did not resolve the legal or political debate over health care reform. It did, however, decide this case in a way that reaffirmed foundational federalist principles, thus ensuring that federalist arguments will continue to receive a fair hearing from the judiciary. If mandate opponents had to lose this case, this was the way to lose it.

    Truly, it’s not the end of all hope. Congress has had official SCOTUS scolding on the Commerce Clause, they were lectured/warned about their powers of taxation also being limited, they were publicly embarrassed that the Court had to go back 180 years to make their mandate constitutional, and they exposed their public lies to the nation that it was, indeed, at tax if they wanted this to be constitutional at all.

    As Scarlett famously says, “After all, tomorrow is another day”.

  4. Layman says:

    All we can do now is elect Romney and give him (force upon him) a conservative House and Senate.

    If your Senator or Congressman is “safe” then send a few dollars to one who is in a tight race. If all you have is $50 then pick 5 conservatives in tight races and send them $10 each. 100,000 patriots doing so would raise $1M – enough to swing a the race their way.

  5. Layman says:

    Video of Obama stating the mandate wasn’t a tax. Video of Obama celebrating the SCOTUS ruling. Solyndra, GM, the deficit, the debt-ceiling, etc, etc, etc.

    If our side can’t make the case that Obama is the biggest tax and spend liberal in the history of our country (hell, the world) then we’re sunk. I’ll think about retiring, moving to the beach in Mexico, and becoming a bartender.

  6. AJStrata says:


    I agree. I am not for gutting the form of government nor the constitution. However I disagree when a rule can twist the clear and concise meaning of the Constitution. The House and Senate have been over ruled before when their ‘rules’ are in conflict with the basic tenants of our government.

    Anyway, the people need to be tossed and the bureaucracy trimmed way back. And I mean way back. No DoE or DoE, minimal EPA, combine NOAA-NASA-USGS, minimal FAA, etc.

    Pull the purse strings away and the house of cards will fall.

  7. Mata says:

    Won’t disagree one iota, AJ. But then, for that to happen, the very corrupt people in control must do that willingly. It will take a very long time… if at all… to weed out the career politicians and power players from those more pure in Constitutional intent as it relates to the central government. And the problem is, weed out some of the top ones, and they’ve been grooming the upcoming new power players.

    Power and money in politics is addictive. I understand the anti-term limits for Congressional seats, but I swear the more time goes by, the more I support it. These people need to go home and get a real job…

  8. Redteam says:

    I have a hard time deciding:
    Keep the crooks in office, they’re already crooks, we know it, they’ve already gotten rich.

    throw them all out a get a new batch that will become crooks and will have to get rich at taxpayers expense.

    hard to decide.

    We know the constitution stopped having meaning at least as far ago as when they let an unqualified person become president without anyone caring enough to do anything about it.

  9. Mata says:

    Yup, RT… rather like choosing between arsenic in your wine, or rat poison in your tea.

  10. Mike M. says:

    Term limits will help. As will Real Residency – a Congresman must sleep 183 nights/year in the district he purports to represent. And I’d require SCOTUS Justices to reside outside the Federal District…and ideally, only one to a state.

  11. Mordecai Subaru says:

    well, there is this short allegation from repubx.com

    Roberts member of Club of Rome, CFR
    by Administrator 29. June 2012 07:55

    Enough said! Another Dog and Pony show to make it look close.

    CFR = Council of Foreign Relations, a NWO organization
    I know you do not engage in conpsiracy theories,
    but it might be worth your time looking into this one.

  12. Redteam says:

    As more time passes and more thoughts are written about, maybe there are some good things that come out of the decision. One, that the government can’t mandate that anyone buy anything.
    Two, that the government can’t force the states to buy into the program by using Medicaid as a threat.
    Three, that the Democrats now own the single largest tax ever passed by the country.
    Four. Each state can opt out of the program, without penalty.
    Five. potentially more competition in private insurance companies as the people will now choose whether to pay the tax or buy insurance. If the insurance is competitive, they will buy it vs paying the tax. If the tax is cheaper, they’ll go with it. This should tend to drive insurance prices down.
    Six. (tongue in cheek) Congress can require you to buy a gun (legal in constitution) or pay a tax.

    Maybe if we get the Senate in Repub hands and Romney in the oval office, some good can come of all this. Certainly the guts can be stripped out by tax reconciliation. (the taxes can be reduced to zero, thereby making it such that everyone will opt to pay the zero tax rather than buy insurance. Also, now everyone will be entitled to the government paying their medical bills because that is what the tax is intended for.

  13. jan says:


    Your point #5 of competiveness and the insurance companies vs buying or paying the ‘tax,’ was an angle I hadn’t thought about.

    I personally am having a difficult time wrapping my head around this entire ruling. Roberts was someone who I admired. But, his decision to transform the mandate’s penalty into a tax, in order for it to fit into the construct of the constitution, seemed a reach too far for a jurist to take.

    And, now you have the dems parsing the ‘tax’ label (which was why it sailed by Roberts constitutionality test), back into a penalty one, which is more forgiving with the public. The ACA has turned into a legal heist, as far as I’m concerned, and a dog and pony show when it comes to how the dems play with it when explaining it to the people.

    What a joke!

  14. Neo says:

    Still looking for a silver lining in the ObamaCare decision ?

    Given that the SCOTUS declared a monetary “penalty” to be a tax, I guess now I can deduct traffic and parking tickets under “Taxes other.”

    Got fined by the EPA, FTC, FCC, SEC … deduct it .. they are now taxes
    Got a penalty for early withdraw of 401(k) funds … deduct it .. they are now taxes

    Every stupid action has unintended consequences.

  15. Mata says:

    The talking points of a “penalty” don’t fly because the SCOTUS specifically defined the differences between a penalty and a tax on pg 43 of the opinion… and certainly addresses it more than once in the majority opinion.

    It’s as simple as this… a “penalty” is a punishment for an unlawful act. Not buying health insurance is not an unlawful act, nor does the PPACA make it an unlawful act. Therefore, it does not fit the definition of a “penalty”. This, of course, differs from traffic misdemeanors and crimes because those are unlawful acts.

    As the Court says:

    In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996); see also United States v. La Franca, 282 U. S. 568, 572 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act”).

    While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26,2012).

    Not surprising that a majority Dem Congress and Dem POTUS, which lied as to the Commerce powers and “penalty” continues to lie to the public even now. They are depending upon the perpetually stupid to continue to buy into those lies.

    What Roberts did in his swing vote reasoning was:

    1: Definitively state in the Court opinion (pg 47) that it was unconstitutional via Commerce Clause (Ginsberg disagreed, perhaps Sotomayor, but the partial concur, disagree by who and what specifically is somewhat muddy).

    2: Apply the SCOTUS precedents that when there are two interpretations of a section of a statute, one being unconstitutional, they must apply the constitutional interpretation, and

    3: Even if the Congress is dumb enough to call a pig, a chicken, the Court must still treat the pig as a pig… Meaning that even despite Congressional stupidity in calling the tax a penalty, the Court must view it as a tax within their taxing power because of the way it is assessed, collected, and that it doesn’t criminalize those not purchasing health insurance.

    The alarm with this as a constitutional “tax” comes in an unusual exercise in their taxing authority, designed to effect behavior.


    1: Taxing an affirmative action (like buying cigarettes and liquor) in order to *deter* that behavior

    2: Negative taxing (i.e. tax credits and incentives) to *encourage* a behavior, such as tax credits for energy improvements, vehicle purchases, home purchases etc.

    This flips around the norm. They are now taxing to encourage, instead of deter, an affirmative behavior (buy health insurance). However the Constitution doesn’t define that Congress’s power to tax has to be as the first two examples above. While out of the norm, it’s not a limit on their taxing authority to do so.

    The ugly part is that this same type of tax – not a penalty – is that we can expect to see similar tactics for the predictable. i.e. taxes for not purchasing an electric car? Taxes on homes that do not opt for energy improvements, etc.

    However they can’t disguise that activity as anything but a “tax” to the electorate… providing they don’t snooker everyone now as to the penalty talking points. One need only notice that Obama and his Dem cronies are, once again, so stupid as to know what what they have wrought, and so arrogant as to publicly tell SCOTUS they are wrong.

  16. thechip says:

    This is NOT a silver lining comment. But, having the entire legislation defined solely under terms of taxation means that challenges exist under tax code now. I am thinking specifically of Article 1, Section 9, Paragraph 3, as it relates to all the waivers being granted to Obamacare.

    Isn’t it unconstitutional to target a tax benefit in favor of a specific individual or organization? Can Congress pass a law allowing an unelected group of bureaucrats to eliminate the tax penalties of specific people for whatever reason they deem appropriate?


    As a penalty, under the Commerce Clause, they might have gotten away with it.

    As a tax benefit applied to specifc individuals or organizations, not so much.

  17. AJStrata says:


    Thanks for posting. Only your first comment should be snagged in moderation, but if you puts a lot of links in it will get pulled aside. Then you have to wait for me to release it (which sadly can be a couple of hours if I am at work or snoring).

    Agree, the ruling had a few silver lining sides. And I think it would be better of we knocked down Obamacare legislatively with broad voter backing than going to the courts.

    Cheers, AJStrata