(nom de guerre)
Justice Kennedy stormed down the hall. His face was flush with his blood rushing back after the cold shiver. His hands reaching out ahead of him as though he could pull himself any quicker down the hall.
Justice Kennedy realized he had lost his sway. He can’t do this, he thought. If John joins Ruth I will not control the decision. The other three will be powerless. I will be powerless.
The Supreme Court is widely understood to consist of four liberals and four conservatives with Justice Kennedy as the swing vote. On decisions of consequence to the left or the right, Justice Kennedy held the power to grant either side the win.
Chief Justice John Roberts joining with the four liberals of the Court negated Justice Kennedy’s position of tie-breaker. Chief Justice Roberts took away Justice Kennedy’s power to force the other eight justices to beg for his favor.
THE SWITCH IN TIME
“We are going to win! We are going to win! Don’t you see?” exclaimed Justice Ruth Ginsburg to her three colleagues. “John is cowing to the President. He is afraid of what the media will do to him if he sides with ‘them.’”
Chief Justice Roberts waited patiently in the anteroom while the four liberal justices continued to consider his offer. Justice Ginsburg’s dissent would be rewritten to concur with Chief Justice Roberts, giving the liberals a 5 to 4 victory. Before Justice Kennedy reached the anteroom, Justice Ginsburg invited Chief Justice Roberts to reenter her chambers, where the deal was struck. ObamaCare would be upheld as a tax.
NEW DEAL SAME AS THE OLD DEAL
Often seen during a picture-taking session together muttering off to the right seated side by side in the front row, Justices Kennedy and Ginsburg initially were writing the majority and dissenting opinions respectively. Justice Kennedy writing for the conservatives was under the impression that Chief Justice Roberts would side with them. Justice Ginsburg writing for the liberals was under the impression that Chief Justice Roberts was opposing President Obama’s will.
In the press, amidst the unprecedented leaks during the Obama administration, a leak that Chief Justice Roberts was siding with the conservatives to strike down ObamaCare was reported. The day after April’s Fools Day, the former constitutional law professor, President Obama, lectures the nation that the Supreme Court would be guilty of “judicial activism” if it dared to declare his now infamous mandate unconstitutional. This public excoriation of the Roberts Court is met with howls of protests from the Republicans. It is said of President Obama’s remarks that they are intimidation not seen since President Franklin Delano Roosevelt threatened his Supreme Court (led by Chief Justice Hughes) to endorse his New Deal.
A TALE OF TWO TIMES
“Let’s make it 9-0,” pleaded Chief Justice Roberts.
Reminiscent of the Warren Court in Brown v. Board of Education, Chief Justice Roberts had called all the justices together to inform them that while Justice Kennedy had been drafting the presumptive majority opinion for the conservative justices to throw out all of ObamaCare and Justice Ginsburg had been drafting the dissent for the liberal justices to uphold all of ObamaCare, he had been writing his own opinion to unite them all.
Chief Justice Roberts saw two views divided in the room. On the right was the view from 1789. On the left was the view from 1913. He reminded them all that they had just affirmed federal supremacy over even a state’s border and the human traffic across it. Would the Founding Fathers have agreed? Would a state be held helpless to defend itself from Spanish, French and English adventurism, or from indigenous tribes?
Justice Roberts seeking agreement continued to try to close the gap after defining it for them. From 1789, the Founding Fathers would not have conceived of interpreting the Commerce Clause to permit such a federal intrusion as ObamaCare into the affairs of the citizens of the several states. From 1913, however, the Progressives installed the 16th Amendment, which is also part of that Constitution now, and it does reach right past the governors, state legislatures and their courts.
DUCKSPEAK: LIPSTICK FOR A PIG
“‘Penalty’? It is a thought-terminating cliche,” retorted Chief Justice Roberts to the other four conservative justices.
As President Nixon famously remarked after decades of the New Deal, “We are all Keynesians now.” Keynesian theory is that government can control the economy by taxing and spending. The government through our current tax system controls everything. Through taxing and not taxing, the government can force taxpayers to choose the path chosen for them, or face onerous taxes (and the criminal penalties for not paying them). Given that half the nation does not pay federal income taxes, and President Obama promised not to raise taxes on the middle class, it was necessary for Obama to hide his tax with one ironic word--penalty.
"You don't interpret a penalty to be a pig. It can't be a pig," said Justice Scalia in reproach to Chief Justice Roberts calling Obamacare a tax. "There is no way to regard this penalty as a tax."
Chief Justice Roberts challenged the conservative justices as he would later challenge a president, a Congress, and a nation to explain what part of the Internal Revenue Service confiscating by force from every citizen by April 15th each year a portion of their income unless they qualify for an exemption and/or credit does not sound like a tax? A rose is a rose by any other name, and the Supreme Court is not bound to call a tax a penalty, a mandate, an exercise of the Commerce Clause or any other subterfuge used by Democrats or the Obama administration to get it pass the voters.
TROJAN HORSE
In her chambers, Justice Ginsburg beseeched the three other liberal justices to recognize that the very progressive nature of the tax system equalizes the power between the rich and the poor, by balancing the financial power of the wealthy with the taxing power of the state. With the eventual easing off of the tax rolls huge percentages of taxpayers beginning with the poorest and moving up the income scale, the nation has reached a point where nearly one half of the nation can tax the other. The one half of the nation that pays no federal income tax can vote to have the other half pay more.
The 16th Amendment is the Trojan horse that has let many more illiberal measures into the country besides ObamaCare. The long list of social experiments and social harms that have been engendered by taxing policy have gone unchecked because the groups assailed were smaller and less politically capable of defending themselves against the larger special interests intent on using the tax code to get their way. Democracy is the road to socialism.
“When the people find that they can vote themselves money, that will herald the end of the republic.” --Benjamin Franklin
WMD
“It was a ticking time bomb,” Chief Justice Roberts interjected to the four conservative justices who were insisting that some other constitutional argument should prevail.
Logically, ObamaCare is just another tax, and the 16th Amendment permits it. The 16th Amendment is the problem, always has been. The 16th Amendment undermines American liberty, i.e., equality of opportunity, because it permits unequal taxation, through progressive rates, loopholes, tax credits and other complicated schemes. The tax code is seventy-thousand pages, hiding one illiberal measure after another; in the same way, ObamaCare hid what it contained in two thousand seven hundred pages. "We have to pass the bill so you can find out what is in it," admitted Speaker of the House Nancy Pelosi.
A hundred years ago the Progressives seeking to follow the path of Europe to social democracy installed as an amendment to the Constitution a weapon of mass destruction. Not until “compassionate conservatives” made deals with the Democrats resulting in nearly half the taxpayers coming off the tax rolls has this WMD been so completely armed.
WHAT IS GOOD FOR THE GOOSE
Chief Justice Roberts gave the liberal wing of the Supreme Court what they wanted--ObamaCare, but he took away from them how they got it--a lot of legal mumbo jumbo and the word “penalty.” They are left then with “tax,” which even the dumbest voter is going to understand. Now all those millions of voters who avoid federal income taxes were going to have to be returned by President Obama to the tax rolls to satisfy the voracious need for funds for ObamaCare. Whether President Obama directs the checks be made out to an insurance company or the IRS, the money is still coming out of the voter’s pocket.
Chief Justice Roberts challenged the conservative justices again as they protested calling what the Obama administration labeled a “penalty” a “tax.”
REFRESHING THE TREE
“Hubris,” Chief Justice Roberts labeled the disapproving glares, as he continued to explain how his decision would correct the tortured interpretations of the words of the Founding Fathers, while leaving to the voters, Congress and future lawsuits the uses and fate of the 16th Amendment. In other words, the Commerce Clause belongs to the view from 1789; and the New Deal interpretations of that provision would be stopped here in their tracks. ObamaCare is a tax; “mandate” is an absurd fiction.
“We cannot continue this fiction,” Chief Justice Roberts continued further, explaining precedent should never be more important than the truth. Some of the justices continued to argue years of Supreme Court precedent since the New Deal, arguing that once the Court has spoken on an issue, it must be followed even if it proves out to be in error, because to backtrack would cause confusion and undermine the Court’s authority. One of the most infamous cases where Supreme Court delayed justice was the half a century the nation was forced to wait between Plessy v. Ferguson and Brown v. Education.
The Commerce Clause is a creature of the Founding Fathers, responded the Chief Justice to the nodding approval of a couple justices, and should be properly interpreted from the view from 1789. The tortured interpretations of the Commerce Clause, starting with the Hughes Court that bent to the intimidations of President Franklin Delano Roosevelt, cannot be added to by the hubris of stare decisis when the truth contradicts.
EENY, MEANIE, MINY, MO
Obama’s lawyers put forward the Commerce Clause, the Necessary and Proper Clause and the Taxing Power of Congress to name a few to justify the mandate. The ruling of the Roberts Court is that the mandate is a tax.
The ruling of the Roberts Court that the mandate is a tax ignores the very assurances given by President Obama himself to the nation. During the very partisan battle over passage of ObamaCare, President Obama personally argued that it was not a tax. He promised not to raise any new tax on the Middle Class.
“Hubris,” argued a law professor supporting the decision breaking from precedent. Stare decisis is hubris. No law should stand as interpreted by any court when that interpretation is wrong. The idea that once a case has been decided by the Supreme Court that that decision must be followed so as not to confuse the People is antithetical to the Constitution that every justice swore to uphold. Lawyers, judges, politicians, bureaucrats, special interests, they are invested in the tortured use of words, carving out exceptions and abuses between the view from 1789 and the view from 1913.
“Dicta,” replied another law professor. Whatever a judge states in an opinion that does not bear on the issue requiring a decision is considered informative but not binding. Accordingly, since the Anti-Injunction Act prohibits a challenge to a tax until that tax has been collected, which in this case will not be collected until 2014, the constitutionality of the ObamaCare tax is not decided. In 2014 when the tax begins to be collected, the Court can hear a new challenge, and the tax will be categorized and ruled on officially. That is, if the tax is still around past the November 2012 election.
“Cowardice,” snorted another law professor. The Chief Justice could have disposed of ObamaCare but for his perverse decision. He calls it a non-tax to avoid the Anti-Injunction Act, and then calls it a tax to uphold ObamaCare.
“Ironic,” forwarded another law professor. As it was the position of President Obama that the mandate was a penalty, not a tax, Chief Justice Roberts answered that subterfuge with a penalty of his own by removing the Anti-Injunction Act as a hurdle.
“If you get a parking ticket, do you assume it is a tax or a penalty?” quips the law professor with his invalid analogy. He was adding to an already very long list of lame counter examples that do not match up.
ObamaCare starts with a tax on everyone, then gives anyone a tax credit negating that tax provided they have health insurance as selected by Obama, leaving anyone else who does not with the tax.
Parking laws do not start with a parking ticket for everyone, then give anyone a penalty credit negating that ticket provided they have avoided restricted parking zones as selected by city planners, leaving anyone else who does not the ticket.
But what was stopping Congress before Chief Justice Roberts’ decision from assessing a tax on everyone, then giving anyone a tax credit negating that tax provided they have a parking space as defined by Congress, leaving anyone else who does not the tax? The answer is voters.
Chief Justice Roberts has ruled: Congress has no authority to require people to buy health insurance; but it can penalize anyone who will not, refusing them a tax credit that everyone else who does gets.
BLUEBIRDS
10:07: "Oh, it's such a blessing . . . Thank you for taking time out of your day! Oh, gracious God, thank you so much! UUUUhA!"
10:30: HOW?
10:37: Recall Rep. Joe Wilson yelling in Congress "You Lie!" during Obama Health Care speech?
10:38: That was about covering illegal aliens.
10:38: Recall “It’s not a tax” interview with George Stephanopoulos?
10:42: Obama’s lawyers argued it was a tax. Republicans argued it was a tax-the largest-on the middle class. Roberts ruled it was a tax. Quack!
10:58: "Roberts supported states rights by limiting commerce clause & forced Dems to come clean - ObamaCare is a tax." I think they're getting it.
11:01: ObamaCare FORWARD To Tax
11:32: First Impressions of Health Care Ruling:
11:32: Mandate is not valid under Commerce Clause;
11:33: Mandate is not valid under Necessary & Proper Clause;
11:33: Mandate is valid under Taxing Power.
11:33: Anti-Injunction Act prohibits this ruling:
11:34: Tax Not challenge-able in Court until begins to be collected...2014.
11:56: Flathead or phillips; who cares?
12:01: We could have had it all. --Adele
12:03: Winner takes it all. --Abba
12:05: Stupid, Roberts saved Obama and killed Romney.
12:06: No, first Roberts exposed Obama as a liar and second he’s forced voters to vote Republican.
12:07: Not with all the treats they have been promised.
12:09: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” --John Adams
12:09: So speak to our teachers.
14:30: Are you sure this isn’t Marbury v. Madison Redux?
14:44: Doesn’t this mean: tax can be repealed by simple majority; and/or re-challenged when ripe?
15:20: Hughes in Roberts’ Clothing. He wimped out.
15:27: I think Roberts is Marshall, not Hughes.
15:29: And moving the argument from the legal mumbo jumbo of the Commerce Clause to the you-know-it-when-you-feel-it-in-your-pocketbook Taxing
15:29: Power was brilliant, giving everyone skin in the game.
16:37: The ObamaCare decision accomplished three things:
16:37: 1) it called OBAMA-"it's not a tax"-CARE a lying tax;
16:37: 2) focused our attention on the camel's nose under the tent--the 16th Amendment;
16:39: 3) and yelled "wake up and make a choice, America, in November."
17:01: How about recognizing Roberts can note now that it is a tax, but therefore it cannot be struck down until it is ripe by Anti-Injunction Act?
18:49: It’s all mob rule now. Rousseau (collectivist) guillotined Locke (individualist).
18:55: Tax everyone their fair share of the Obama economy UNLESS the taxpayer opts for a tax credit for giving up their vote.
MARBURY REDUX
Chief Justice Roberts negotiated a decision upholding States' Rights, in return for ObamaCare being upheld under the Taxing Power. Some things must be defended by the Supreme Court to preserve the Republic, like upholding the 10th Amendment--States' Rights. But a huge tax increase on the Middle Class is easily resolved in the very next election by the People.
In Marbury v. Madison, Chief Justice Marshall (a Federalist) capitulated to the will of Jefferson (an anti-Federalist), but in such a way that it forced Jefferson to acknowledge Marshall's authority to say what the Law is. In ObamaCare, Chief Justice Roberts (a Republican appointee) has capitulated to the will of Obama (a Democrat), but in such a way that it forced Obama to acknowledge the mandate survives as the tax that it is.
MORAL OF THE STORY
The Roberts’ decision on ObamaCare forces us to face two futures ahead of us. In November we vote our way back to fiscal sanity, or confirm the Mayan calendar. Roberts, who could have saved us from ourselves, has dropped our last 100 years in our laps and properly said, "You fix it." And we can. Yes We Can!
EPILOGUE
Following the ObamaCare decision, presidential candidate Mitt Romney made a public address: "What the Court did not do on its last day in session, I will do on my first day if elected President of the United States--that is, I will act to repeal ObamaCare."
Chief Justice Roberts, smiling that smile like President George W. Bush, went on smiling that smile.
~3,000 words
Historical perspective from The View From 1776:
ReplyDelete"The Senate was intended to be the bulwark against unwise political actions that infringed upon the rights and powers reserved to the states and to the people by the 9th and 10th Amendments of the Bill of Rights. Because Senators were originally elected by their state legislatures, they had to be attendant to the wishes of the individual states and could not, as now under the 17th Amendment, respond primarily to pressure from national political parties to conform to the dictates of special interest groups such as public employees labor unions or “green” fanatics.
Ratification of the 17th Amendment thrust upon the Supreme Court the burden of attempting to play the role originally intended for the Senate, a role that the courts simply cannot fulfill. Since 1913 the Supreme Court has twisted and turned, seeking constitutional justifications, however indirect, to impose restraints upon egregiously damaging and unwise legislative action. It should not have to assume that role. Without the 17th Amendment, Federal courts would not be the centers of bitter political fights, litmus tests, and poisonous confirmation hearings that destroy reputations and careers.
The 17th Amendment, ratified in 1913, was one of many initiatives championed by liberal-progressives to facilitate transformation of the Federal government from one limited by constitutional constraints into one with almost unlimited powers to impose new sociological standards. It was a key piece in the push to neuter states’ rights and to collectivize power at the Federal level.
The commerce clause of the Constitution has been stretched since 1913 to confer upon Congress the power to regulate any action or event anywhere in the universe on the grounds that it might, however indirectly, affect interstate commerce. The birth of every new baby, for example, indirectly affects interstate commerce, because the parents will need to buy food, clothing, and other items. Some of such items will surely have been manufactured, warehoused, or shipped from states other than that of the baby’s residence, bringing the birth of a child within the purview of the commerce clause. There is thus theoretically no constitutional limitation upon Federal power to regulate the number of children a family is permitted to have.
It is noteworthy that very few issues of judicial activism arose prior to ratification of the 17th Amendment, because the Senate generally did its job, which was preventing passage of power-grabbing legislation. It is also noteworthy that growth of the Federal bureaucracy accelerated only after the 17th Amendment."
http://www.thomasbrewton.com/index.php/weblog/the_17th_amendment_revisited
You got me reading some important info. Keep it up.
ReplyDelete