Funny how that new judicial restraint works
The self-delusion that yesterday’s affirmation of Obamacare’s mandate under the taxing power of Congress was a conservative victory continues in full force today. (See links and quotes at HotAir and Instapundit)
Judicial restraint now means ignoring the will of Congress as to the purposes and structure of legislation in order to save the legislation from Congress.
That “restraint,” i.e., rewriting legislative history, terms and purposes in order to save it, was not used to salvage most of the Arizona immigration law.
Funny how that works.
Donations tax deductible
to the full extent allowed by law.
However much the court reduced the reach of the commerce clause, it increased the reach of the taxing power.
And there is absolutely no way that in a constitution of enumerated powers, that medical care delivery is one of those enumerated powers.
This is bogus, but most of government growth since the New Deal, and arguably, since the civil war, is.
A massive change of this sort requires a constitutional amendment which is difficult to pass, which is why they try these unconstitutional legislative means. None of these pro-Obamacare office holders take their oath to preserve and defend the constitution seriously.
I reject the notion that Roberts created a new tax weapon that will penetrate the democratic process to be unleashed upon the American people in untold new ways.
I hope that’s sarcasm. Because this “taxing” power just made you and me and everyone you see, required to buy medical insurance.
That’s a nuclear-sized requirement. No spindly conventional sized bomb here.
First you declare its NEW expanded taxing powers then say its limited to Obamacare.
You can’t have it both ways.
Obamacare survival depends on the tax, and once stripped there is no proof that all the leaps, hurdles and corrupt backroom deals it took to ram through this monstrosity would or could occur again.
To project that it is the new nuclearized way of how congress conducts its business is disingenuous.
doomsday monger, with complete lack of trust in the American people and The Institution of Congress.
Just because Scanty but Wordy wishes to believe Congress has new expanded taxing power that will be unleashed upon the American people in untold new ways doesn’t make it so.
Your rudness is only outdone by your ignorance. The Supreme Court has decided that the former “mandate” is a tax under Congress’ power to tax. This is law – this is reality. This is tax is not levied when a person buys a product nor engages in an activity. It is a tax on existence and will of course apply only to those of us who work and pay taxes. If you wan’t to stand in the middle of your basement and cover your ears and yell “no no no” doesn’t change or alter yesterdays decision. Your naivite concerning congress’ (both parties) lack of willingness to use taxes as a method of promoting their own twisted agenda is touching and has absolutely no resemblence to the terms of Bush II or Obama.
this mandate can be read as a tax in these circumstances — that is, in light of the fact that it would be unconstitutional on any other ground and the court is supposed to avoid finding statutes unconstitutional if it can — and on these grounds: because it is administered by the IRS through the tax code and operates in many respects like a normal tax. Only if future regulatory schemes can meet all these criteria would they be valid under the taxing power.
And they have told us repeatedly, that members of Congress would never have voted for this regulation if they had believed it was a tax.
So although you may believe that there is no recourse in restricting congress from wielding a supposed “new” taxing power there are specific laws to taxation and types of taxation… and the ultimate power of We The People to vote out the unwieldy.
Any conservative who has read the civil rights cases from the 1960s knows the power that the Warren court gave the Commerce Clause- and the way I read the discussion in the decision, Ollie’s Barbecue and Heart of Atlanta Motel could not have been decided the way they were had yesterday’s decision been in existence.
I would have preferred the Obamatax to have been killed by the Court, but to neuter the commerce clause and prevent its use for unfettered congressional power is something that I’m glad we now have.
The feeling on Roberts seems to boil down to the fact that he agreed with the petitioners points but departed on the penalty vs tax.
Others seem to thinks this was a warning to the Congress to not do this again, as all future legislation will be constitutional based on this new standard, but this one time he was going to let this stand (wink, wink, hudge, hudge, know what I mean).
Yes, this was a case of judicial activism, but only this once.
I think we may be underestimating Roberts. No, I don’t think he is some sort of stealth conservative genius, whose ruling yesterday will somehow advance the cause of limited government in ways we mere plebes can’t yet comprehend. But I do think Roberts engaged in some impressive feats of prestidigitation yesterday.
Consider this: the Obamacare fine/penalty was found not to be a tax when Roberts and the libs needed it not to be a tax for purposes of avoiding the application of the Anti-Injunction Act. But after Roberts and the conservatives acknowledged that the federal government does not have the power to compel people to buy products and services, Roberts decided that the government can legitimately tax people (using that aforementioned non-tax) for failing to make those purchases which the government has no power to compel in the first place.
Roberts not only created a tax, he created a magic tax! Sometimes it’s a tax, sometimes it’s not.
More on Chief Justice Roberts. In the 2005 confirmation hearing, on Roe, he told Sen. Specter that “It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.” Chief Justice Roberts had also worked for homosexual rights. So-called conservatives supported him even with this; his decision should not be a surprise.
I thought Andy McCarthy’s take on this was dead on…
Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.
I love how it is a tax except for when it isn’t a tax.
As for Andy McCarthy’s excellent take on it–Roberts and the left are snickering at the rubes right now. Of course the court can rewrite whatever they want whenever they want. After all, the Constitution is what they say it is. It is almost as funny to them as the notion that the SCOTUS is any sort of bulwark against the cancerous growth of the federal government.
Roberts, the “brilliant legal technician” (to use John Hinderaker’s phrase) would have been right at home on the Taney court or on whatever kangaroo court that “enforced” the old Soviet Constitution.
[…] Legal Insurrection: Funny how that new judicial restraint works […]
Twisting the narrative against the Supreme Court and not taking the battle to the enemy is weak.
“We’ll have to pass it to find out what’s in it.”
UmmmK… That would be the biggest tax hike in the history of mankind, and it falls on the middle-class and the puuuuurrr.
Heckuva job, Barry!
One other thing; Conservatives were totally vindicated in their arguments on the Constitutionality of this pile of excrement. The Roberts Court had to squirt sideways to reach this result, and it is alien to the Constitution.
It is said the decision is not the basis for impeachment of Roberts. Perhaps this is “true.” But we’ve allowed our penchant for certain conventions, not in the constitution, to grow like barnacles on our processes, and render us so encrusted we are unable to move to free ourselves from peril.
Specifically, the concept that we cannot ask judicial nominees questions about their beliefs on specific issues because those issues may come before them, has required the country to be at the mercy of judges who as nominees were “pigs in a poke.” You can’t see them, they’re in the box, you can poke with a stick, and see they’re alive, they breath, but no idea what actual condition beyond that, the judicial candidate is in.
This concept is acceptable when speaking of specific cases between specific individuals, such as, a case between two neighbors over whose tree, exactly, was that, that fell on the other neighbor’s car. It is intellectually and philosophically objectionable when discussing a judicial candidate’s views on broad matters of public policy, such as the extent of judicial review, the extent of the commerce clause, the existence of “penumbras,” and whether the constitution gives the court the power to require forced busing, or campaign limits, from whole cloth, in one decision.
We must not allow the left to win more judicial seats by this stealth confirmation process. We are entitled to know the public policy and judicial process thoughts of nominees, as we are entitled to steer the direction of our country as we see fit. “Advice and Consent” means more than confirming than a candidate has a heartbeat. You cannot “advise” with zero knowledge. You cannot rely on a paper trail that doesn’t include any information about specific policies the court will address.
We are entitled to know if a socialist or a capitalist is being considered for a seat. We are entitled to know the candidate’s views on judicial review. We are entitled to control our destiny, and now allow the false satan of “litmus” tests to put us at the mercy of stealth judicial candidates.
We must grow intellectually, analyze independently the processes which continue the path to sclerotic government, in which no improvement can be made, because the body politic is bound by the ties of small, conventional thinking which benefits only the socialists pushing us to our knees.
However, will we ever have a fighting chance when the nominees just look at you and lie?
“Ms. Kagan, we’re you involved in any discussions about Obamacare, specifically with regard to defending it in any probable future cases?
“Nope. Not me. What healthcare law?”
Then we have email evidence showing her DIRECT involvement, and NOTHING HAPPENS. She’s not even forced to recuse herself.
How do you defend the Constitution when the other side will lie, cheat, steal and KILL to accomplish their objectives??
*were* Not we’re. Need more coffee!
Unethical justices can be forced out. Look at Abe Fortas. And Fortas was probably a model of ethical behavior compared to anyone in the Obama administration.
I don’t recall all of Kagan’s hearings, but she should have been asked point blank if she approved of single-payer, or indeed, any federal government role in medicine. If she answered yes, that would be grounds to vote against her.
As far as her lying, we underuse the impeachment process. It is so rarely used as to be no deterrent at all. We should be telling our congressional office holders we expect them to be impeached for a material lie. The more we say this to them, at some point they might do it.
While the left beefs up in their determination to destroy the country, we must beef up in our determination to restore it. If our past practice hasn’t been up to the task of protecting the country, then we must change our past practice, including making judicial impeachment a more real possibility to those who hold judicial office.
Do you not suppose that if, for the sake of argument, Roberts had sided (not incorrectly) with Scalia, et al, and declared ObamaCare unconstitutional on the basis of Commerce/Necessary, Obama would have attempted to implement anyway on the basis that “omigosh it really is a tax!” (after the election)? Are we going to pretend we’ve never seen Democrats pull such a stunt before? Oh wait, no they would have stopped *this time* because the Supreme Court said so (like with gun rights and reciprocity).
The vile left does not care about barriers placed in their way. So long as they have access to government power they will use it to get what they want. Remember Pelosi’s threat just before the ObamaCare vote in Congress.
They and their government instruments must be politically demolished; We The People must do our job.
You make two big assumptions here.
1) Obama wins reelection
2) Democrats win majority in the House
Short of these two things, no I don’t think the administration could have brought this back as a tax. And even with both of these things on their side, they’d have a much tougher fight with their constituents once they started calling it a tax.
My point is it’s already a law. Obama would simply implement the law that was passed because he disagreed with SCOTUS.
And I don’t dismiss Obama’s chances in November because I don’t have much faith in Romney. Of course if Obama believes ObamaCare is a winning issue (and why shouldn’t he?), he may go ahead and push implementation ahead of the election anyway just to get out the vote.
I was thinking the same thing when I was reading Patterico’s blog on textualism.
If you follow Scalia’s theory of textualism, then this was a penalty and not a tax, and the law should have been struck down. If you are going for ‘legislative intent’ then it is still extremely clear from the health care debate that legislators also did not want this to be considered a tax but a penalty. What the Chief Justice did her was take a large leap of faith, and said “If we had no idea what the legislators were trying to accomplish, then we could possibly assume that they were attempting to make this a tax.” In other words, he read between the lines and found the intent that wasn’t there.
I agree, VHF. It seems some of the court’s worst decisions are based on reading between the lines, or “finding” a right to privacy, etc. It’s just so demoralizing…
Since when are Supreme Court justices diviners of intent. There job is to take a law and determine if it complies with the constitution. I know they can take congressional debate into consideration if there are questions of intent. However, this was never called a tax. This was Roberts invention – excuse me – interpretation based on – nothing other than his desire to uphold this law. His crime to me is caring more about his image and the image of “his court” than upholding the Constitution. Honestly they might as well shred the darn thing since NO ONE – NOT CONGRESS, THE PRESIDENT, OR SCOTUS follows it. I apologize about the caps but I happen to love that old relic and it continues to break my heart to see the government my family fought and died for ignore it.
Not only is it insane logic, but given that liberal justices don’t care about precedent anyway – why does a massive, massive loss matter one bit for creating a pale, weak “precedent” to restrain power — that will be ignored anyway?
punfundit also hits on the same point. They are proceeding amuck, daring Republicans to stop them. They don’t. When we take matters into our own hands, the courts don’t stop as it stands when things are balanced on a knife’s edge.
A couple more years of court packing, and even those barriers won’t matter.
My wife is a legal immigrant who has (and continues to see) her homeland’s formerly democratic ways slowly and consistently destroyed. It is a sad sight.
Through an immigrant’s eyes, she just asks “Can’t anyone see what the heck is going on? Its the same thing”.
She doesn’t look at the policy (we don’t even always agree), but she sees the exact same style of governing. The totalitarian instinct, the corruption, the self-righteous mantle that is wrapped around the actions, the attempt to silence the critical media, packing the courts, undermining of military’s legitimacy as a respected institution, and the divide-and-pit mentality.
And all the sheep that go along with it.
To her, its clear as day, and she can’t stand condescending liberals who think because perhaps her English isn’t perfect (it nearly is), they need to “explain” things to her.
She gets it. They don’t.
Precedents, barriers, etc. – they don’t mean anything to totalitarians. Only to those of us who care about rule of law.
Unilateral disarmament in the face of facist threat is what this decision is.
Yep. A lot of folks call this “socialized medicine”. It is worse than that. This is fascist medicine, straight up.
Resistance is mandated.
yep. fascism is merely socialism implemented through cronies out of the government. And while socialism is evil, at least it is upfront evil. Fascism is dishonest about what it is.
l am no expert in any of the legal aspects & am hesitant to take a position on things l cant have an informed take on. l can understand where your immigrant wife is coming from. l have known from the outset this is the culmination of fascism. lt has been building for decades under both parties & the dems with their super majority have violently pushed us across the tipping point. Roughly half the country does not understand this. ln the end that is our battleground. Not some arcaine legal point. Roberts may believe he scored on some such point. Earlier posts are correct. The Fascists dont care. They will do what they do.
Now that the penalty is ruled a federal “tax” it is necessary to determine what kind of tax it is, and if that tax is applied correctly by this law. Is the penalty a “direct” tax on a person, or is it an “indirect” tax on a thing.
This ruling did not alter the US Constitution nor any existing case law on how taxes must be laid and collected throughout the land.
The penalty has all appearance of being a direct tax, or capitation (a tax levied directly on a person, or on his condition of property ownership); however, such tax is not apportioned in this new law! The APACA is applying a direct tax on people, but collecting it in the manner of an indirect tax. (This was never argued in any court, as the measure was not a tax revenue measure!)
Indirect taxes must be uniform, but cannot be levied on a person… This penalty is clearly levied on persons, just like the US Income tax. But the Income tax required the USC to be amended, and this only applies to Income taxes!
Sure the Congress may have the power to lay and collect taxes; however, it must collect those taxes in the manner and methods allowed for under the USC and existing case law.
Direct taxes levied on people must be apportioned; indirect taxes levied on things must be uniform (the income tax is the only exception to the rule, due to constitutional amendment for that narrow exception)
Totally eviscerates the notion of expanded taxing powers.
Agree with Rags on the McCarthy piece. Also agree with the points about the Commerce Clause..that entire finding some positive in the loss. Glad to see Barnett’s argument was essentially accepted by the court.
Meanwhile, the Democrats go home with the prom queen and were sitting in front of the tv with a bag of fries.
Its what Republicans do now that’s important. Im not as interested in what may happen next time a Commerce Clause law is written and makes it to court.
So its a tax now. Run with that and force legislation in Congress to both recapture the “mandate” as a Congressionally controled tax and force democrats to admit its a tax by voting yes….if they want to pass the legislation. Work with what we have right now.
At times like this, the difference between the “Republican” media and the “conservative” media becomes painfully apparent. Pick out the biggest of “our” guys in the media and watch them spin as they try to placate the conservative base. Watch the websites that you thought were reliably conservative and note that they are leading with articles about how John Robert’s decision was a “victory.” soon they will be saying that the Court is at stake in the next election. Republicans have had a majority of Supreme Court Justices for over 50 years. The Republican party must be reformed.
I’m looking for a shred of hope from this debacle, and found an article on AmericanThinker.com by attorney Dov Fischer which helps a little.
Professor, can you weigh in on his assessment? Here’s an excerpt:
“There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want. An American cannot be compelled by federal mandate to eat or even to buy a proverbial stalk of broccoli. As a kosher consumer, the federal government cannot wield that clause to impose on me an obligation to purchase non-kosher food supplements. The rules guiding lower-court wrestling matches over federal power to invade Americans’ private lives now have been reset remarkably by Chief Justice Roberts. Few today notice what he has done. Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington’s intrusions.
It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news. However, attorneys and certainly law professors get it. We know what happened on Thursday. It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore. Only the trained insiders know what that rumbling will cause in the future. This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government’s unbridled abuse of the Constitution’s Commerce Clause. And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise. And that is fine.
Secondly, Chief Justice Roberts has punted the whole ninety yards, so to speak, with the expertise of a professional football kicker whose team has the ball on its own 8-yard-line, then punts ninety yards, pinning the other team on their own two-yard-line. Had Chief Justice Roberts sided completely with his four conservative colleagues, Obamacare now would be off the political table for the November elections.”
Read more: http://www.americanthinker.com/2012/06/the_chief_justice_done_good.html#ixzz1zCBbgpvw
He’s another in a long list of people on “our side” who is polishing a turd.
It is sad watching “conservatives”, many of whom are esteemed syndicated columnists, spin this as a win. The win would have been striking down the entire law, which is exactly what the four justices in the dissenting opinion were correctly prepared to do.
Roberts sacrificed his conservative principles. Only he knows why. But I tend to agree with Artur Davis who speculated that the full frontal assault on him by lefty pundits since the oral arguments may have had something to do with it. They essentially promised him that they would do everything in their power to destroy his historical legacy if he did not rule their way.
If it’s true that he buckled under pressure, then that’s even sadder than reading the “conservative” pundits who want us to pretend that this is a win for conservativism.
Some conservative pundits would have me believe that Roberts is like a chess grandmaster whose devastating move looks suicidal to naive observers. I will acknowledge Roberts’ brilliance if the promised positive consequences ever happen. Until that time, I’m keeping it simple:
Losing is worse than winning.
And a set of SCREWY precedents, set by this ruling, has future ramifications that could be devastating.
IMHO, the American people have lost far more than a single opinion. The rule of law no longer exists. We now have the precedent for the laws to be passed outside of an established and a court that will re-write that law to change it’s meaning. If Roberts intent was to preserve the reputation of the court, then he did so at the cost of it’s soul.
What kind of hope is there, except for the bogus kind Obama peddles?
Conservatives are almost one-half of the country, by a significant margin the largest ideological bloc. I cannot recall a single instance in human history where such a large, strong, popular movement has been so powerless.
Betrayers unexpectedly appear in our own midst at every crucial juncture, turning our victories into defeats.
We have just about run out of options. We keep winning, but we keep losing.
Is there a God? And if He exists, is He “just” as conservatives perceive the word–or have the “religious leftists” been right all along about Him? Perhaps it’s heresy, but I cannot help but wonder, given a seemingly just cause that is so routinely beset and defeated by lies, brutality, and treachery.
Got something better to replace it?
Like, rather than creating a structure that will devolve to a single-payor, limited option system like the mess we’ve seen in Canada and the UK, how about a system that encourages the formation and growth of smaller insurance companies, across state lines and competitive nationally?
You MUST have a better answer, or this law will stand by default.
As for the delusion at Hot AIr about whether this is a victory for conservatism, I can only point to two instances: the whupping the capital “C” social conservatives got while George Bush was in office, and the utter failure of the capital “C” social conservatives to follow up on a very real win in the immigration debate, with the passage of a useful law, and the spinning of that net failure as a “victory” for “Conservatives.”
The reasons we have a TEA Party movement include the repeated inability of the Conservatives to push back with reasonably framed, useful legislation on issues that voters recognize to be needed. Another, similar reason is the red-faced screaming of the accusation “RINO” every time a prominent Republican shows signs of pragmatism. (I’ve begun to believe that a lot of that comes from mobys.)
Forgot to mention: I hope somebody asks Newt what to do next.
Newt is in Europe right now. He was on Hannity yesterday. He was cool, civil, but disinterested. He gave the impression of near-total detachment.
After the vicious bollocking he took, I think Newt has largely given up. And who can blame him? As time goes on, the coordinated attacks on him seem increasingly unbelievable.
As for all the Mittens…I’ll work for his election, but I think he’s going to lose. His response yesterday was timid and tentative. His voice kept shaking. People were shaking their heads after the Arizona Amnesty response, too. Including Rush “Screw Newt–Debates Don’t Matter Against Obama” Limbaugh thought the performance would have been suicidal in a debate against Obama. It’s one thing to trash fellow Republicans viciously with the help of the MSM and Establishment. Playing solo in the Big Leagues seems beyond poor ol’ Mitt. Honestly, I thought we’d get a lion. We seem to have gotten McCain II.
“the repeated inability of the Conservatives to push back with reasonably framed, useful legislation on issues that voters recognize to be needed. Another, similar reason is the red-faced screaming of the accusation “RINO” every time a prominent Republican shows signs of pragmatism. (I’ve begun to believe that a lot of that comes from mobys.)”
I suppose you define “pragmatism” as John Boehner “compromising” by coercing Tea Party freshmen vote for the debt ceiling bill that Boehner and Obama cooked up in private. You know, the bill that gave Obama everything he wanted.
I suppose “red-faced screaming” was what conservatives did in response to this betrayal.
As I recall, you’re a big Romney-ite. So, you got your man. His official responses to this week’s two horrible Supreme Court decisions were shockingly weak. (I don’t like him, but always considered him powerful and fearless–until I heard his voice shaking through his entire statement yesterday).
Instead of lecturing conservatives about our awfulness, how about helping us drag your stiff of a nominee across the finish line?
As soon as the AZ opinion came out, I had an uneasy feeling about the upcoming Obamacare decision. I wasn’t able to articulate why, and didn’t comment here because of that. I still can’t, save for something is rotten.
It’s easier to accept an unfavorable decision when one can understand the why of it, but we don’t have that information.
I liked Greg Gutfeld’s analogy.
It’s like Obama turned in a really crappy term paper that deserved an “F,” but instead of giving him a failing grade, the professor rewrote the paper and gave him an “A.”
That’s been happening to Obama his entire life.
I Obama is the head of an uber-corrupt political Organized Crime family. They’ve taken over D.C. (corruption like that is essentially impossible to root out). That’s how it is in Russia. And that’s how you govern against the will of the people: threats, coercion, inducements for those you can’t control directly.
America, I think, is finished.
The self-delusion that yesterday’s affirmation of Obamacare’s mandate under the taxing power of Congress was a conservative victory continues in full force today.
Sometimes parody is the most direct way to refute an absurdity. I look forward to Hitler Learns That Obamacare Was Upheld.
LOL..so will I …lemme go look!