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Pretzel tax logic

Pretzel tax logic

Saving Obamacare by calling a penalty a tax has created all sorts of political contortions.

What if the Supreme Court had called a dog a cat, would we then be required to call a dog a cat, particularly if it were better for us?

That’s where we are right now.  Properly characterizing the Obamacare mandate as a penalty used to enforce regulation of inactivity under the Commerce Clause was a proper description when the matter was pending before the Supreme Court.  But the regulation exceeded the powers under Commerce Clause.

Now that the Court has ruled, it’s still a proper characterization, but the Court held otherwise under Congress’ power to tax.  So now it’s a tax.  But it’s not a tax, except that legally it is.

So Romney’s campaign now has to twist itself into a pretzel in order to call the Obamacare dog a cat (via Tom Maguire):

A spokesman for Mitt Romney said the former Massachusetts governor agrees with President Obama that the individual mandate upheld by the Supreme Court last week is a penalty or a fine, rather than a tax.

In a roundabout exchange on MSNBC’s “Daily Rundown” on Monday, Eric Fehrnstrom was asked if he agrees with Obama that the individual mandate is not a tax.

“That’s correct,” Fehrnstrom said. “But the president also needs to be held accountable for his contradictory statements. He has described it variously as a penalty and as a tax. He needs to reconcile those two very different statements.”

The Supreme Court is not the Supreme Court because it’s right, it’s right because it’s the Supreme Court.  Even when it’s wrong.

It’s a tax because the Supreme Court called it a tax.  Obama raised “taxes” on people who make under $250,000 per year.

End of discussion.  (For now)


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I guess congress will have to get with the program and make it clear the legislation is a tax or those future letters from the IRS assessing a “penalty” are going to cause a lot of legal confusion.

I have to wonder how this circus is going to affect the court. There are now four justices that will never hold Roberts in anything but complete contempt.

LukeHandCool | July 2, 2012 at 1:45 pm

In soccer, isn’t a penalty kick really a tax kick?

    Henry Hawkins in reply to LukeHandCool. | July 2, 2012 at 5:18 pm

    I gave you a ‘like’ but I goraned while doing it.

      Henry Hawkins in reply to Henry Hawkins. | July 2, 2012 at 5:18 pm

      ‘Goran’ is southern for ‘groan’. It’s a cultural thang.

        LukeHandCool in reply to Henry Hawkins. | July 2, 2012 at 6:30 pm

        Small world.

        “Goran” is added to the -te form of verbs in southern Japanese and roughly means, “Why don’t you try [verb]ing and see? What did I tell you?”

        My wife is always saying to our kids, 見てごらん.

        I guess you could say “Gorande goran!” … “Groan and see for yourself. See, I told you.”


casualobserver | July 2, 2012 at 1:50 pm

Fehrnstrom does more harm than good for Romney’s campaign, overall. I expect there are a lot of dedicated conservatives who vehemently oppose Obamacare that are now, yet again, losing energy to support Romney. Will Romney come out and contradict Fehrnstrom by saying it is a tax if the SCOTUS says it is?

    This is demonstrative of the EXACT reason I’m not four square with the likes of Romney. Here, he’s handed a dead-on conservative issue, one that he could and his minions and spokespeople s/b hitting over the wall, and what does Mittens do – he AGREES with Obama that it’s a penalty not a tax.

    Stated otherwise, Mitt ain’t one of us, and we know it. We’ll go along with him b/c Goal #1 is getting rid of Obama not necessarily to elect Romney. Romney is not the one we really want or need. Neither was Nixon, nor Bush 41, nor Dole, nor Bush 43, nor McCain.

    SCOTUS tells us all that the mandate is a tax and b/c it’s a tax Roberts et alia say it passes any constitutional tax. Romney s/b screaming that tax increase on the middle class from the roof tops. But he’s not.


    Roberts said it was a tax. It is (as a matter of law now) a friggin tax. We want it gone. Go with the Supreme Court and save the college bull sessions.

    Moonbeam in reply to casualobserver. | July 2, 2012 at 10:24 pm

    Agreed- he’s the dope that used the Etch-a-Sketch analogy. If Romney’s the great tactician that he is presumed to be, it’s time to cut ties with Fehrnstrom- don’t wait for strike three. And I say that as a full-on Romney supporter.

“Whether we advertise the fact or not, the moment we cease to support the government it dies a [natural] death.”

The Supreme Court isn’t “supreme” in the sense it has the final say in American life. It rules on law.

Each of us has to decide what laws we will be bound under. If you will be bound by any law, you already have said you will be a slave. You are just awaiting the passage of that law.

Prohibition was abolished because so many Americans just said NO.

Civil disobedience works any time it is supported by a sufficient number of the people.

We yet have the ballot option this November, and we can hope that will avail. But many of us have already determined we will not comply with this assault on our freedom.

This is the best this country can do? Obama or Romney?

In recent years, I’ve entered a voting booth with the same thought “This is the best this country can do?”

Why, given a opportunity to separate himself from Obama, would they even make such a statement? What are we going to have? A choice between a socialist or a closet-socialist?

If the other Republican candidates meant what they said, then they need to take Romney out behind the wood shed and give him a good talking to. Otherwise, they just might have to consider an “insurrection” at the convention!

Henry Hawkins | July 2, 2012 at 2:02 pm

Time to break out the Blackadder quotes:

Dear Chief Justice Roberts,

“You couldn’t get a clue during the clue mating season in a field full of clues in heat if you smeared your body with clue musk and did the clue mating dance.” ~ Sir Edmund Blackadder

    LukeHandCool in reply to Henry Hawkins. | July 2, 2012 at 2:11 pm


    When I was a boy we had a German Shepherd named Heidi. Whenever she was in heat, I’d go over to my best friend’s house across the street, we’d go in his backyard, and then his male Springer Spaniel would latch on to my leg and start humping. Man, we thought that was funny.

    His tongue would be hanging out to the side, he’d have that crazy look in his eyes, and we would be in tears.

    Like a Chief Justice he was, ol’ Snoopy.

    huskers-for-palin in reply to Henry Hawkins. | July 2, 2012 at 10:01 pm

    Baldrick, you wouldn’t see a subtle plan if it painted itself purple and danced naked on top of a harpsichord, singing “Subtle plans are here again!”

    Moonbeam in reply to Henry Hawkins. | July 2, 2012 at 10:27 pm

    To further the metaphor…”or if you got conked on the head with a clue bat while you were behind the plate calling balls and strikes!!”

Oh No, its not pretzel logic, its a “Schrodinger’s Cat” solution

    Kenshu Ani in reply to OcTEApi. | July 4, 2012 at 6:35 am

    Like the cat in the box, the law can be both constitutional and unconstitutional (or penalty and tax), only while the box is left unopened. With the Supreme Court ruling, that box was opened up and now we have a dead stinking cat on our hands.

Cassandra Lite | July 2, 2012 at 2:05 pm

“What if the Supreme Court had called a dog a cat, would we then be required to call a dog a cat, particularly if it were better for us?”

Just so.

•What if we have to destroy the village in order to save it?
•What if we have to check the box that says “Native-American” in order to get that job at Harvard?
•What if we have to accuse gay-friendly Israel of “pink washing” in order to keep our left-wing bona fides in order?
•What if we have to make sure that the first African-American president is reelected even though he’s been a disaster for African Americans?
•What if we have to triple the deficit to bring down the debt?
•What happens if we have to blame summer on man?
•What happens if we deny oil-drilling permits and then insist we can do nothing to bring down the price of oil?
•What happens if the unemployment rate comes down only because millions have dropped out of the job hunt?
•What happens when there’s too much absurdity to remember it all?
•What happens if Orwell wasn’t kidding?

We’re finding out.

    LukeHandCool in reply to Cassandra Lite. | July 2, 2012 at 2:27 pm

    Well, when the “What happens if …?” questions get me down (which is often as I’m a natural worry wart) I take refuge in a good book.

    And, man oh man, I had a plan to just read a few pages of your book everyday so it would last for the summer. But it really got to the point where I couldn’t put it down.

    Fascinating story. Usually when an author tries to evoke a time in the past with references and recreated dialogue, it often comes off as mildly phony and contrived at best.

    But wow was this completely natural! Fascinating true story told by a master storyteller (and LI commenter).

    Run to your nearest Amazon webpage and get:

    L.A. ’56: A Devil in the City of Angels

      Cassandra Lite in reply to LukeHandCool. | July 2, 2012 at 2:50 pm

      Wow, Luke, thank you. That’s really nice of you to say (and write) so. I very much appreciate it. Glad you enjoyed the book. Knock wood, nice things are about all I’ve been hearing.

        LukeHandCool in reply to Cassandra Lite. | July 2, 2012 at 2:59 pm

        I can really see a movie being made.

        Hopefully Brian Grazer’s son will be on our son’s basketball team again this coming school year.

        If so, I’ll just kind of nonchalantly hand it to him and tell him he should read it.

        Bravo on a great book!

          Cassandra Lite in reply to LukeHandCool. | July 2, 2012 at 3:40 pm

          Thank you, that’s a terrific idea. Actually, have had a few meetings with known and accomplished producers, though none of Grazer’s stature or, more importantly, pockets. Everyone claims poverty these days, insisting on a cheap option in exchange for being able to “package” it with a director and star. The story’s been there since 1956; it’ll keep. And its importance seems only to grow with time. (By the way, I met the rapist’s daughter, a fascinating experience I’ll tell you about. Don’t want to hijack the good professor’s bandwidth, so if you’re interested: contact [at] joelengel [dot] com.)

          LukeHandCool in reply to LukeHandCool. | July 2, 2012 at 3:53 pm

          Our son and his son are pretty good friends, so I’ll somehow get it into his hands. Probably enlist my wife because it’s obvious Mr. Grazer has a little bit of a crush on her and they always start chatting at the boys’ games and events.

          Okay … back to politics … sorry, Professor. 🙂

        L.A. ’56 is your book? I work in a bookstore and we carry that one. In fact, the cover (thanks for the link, LHC!) gives me a great idea for a new display table, maybe a Noir-ish theme with some hard-boiled detective fiction, true crime, and film guides. I’ll be sure and put your book front and center as payment for giving me an idea. (I do many of the stores displays and am always looking for something interesting to build around.)

          LukeHandCool in reply to angela. | July 2, 2012 at 3:14 pm


          In this case you can judge a book by its cover.

          I told Joel some time ago how much I loved the dust jacket design.

          Read the book. I was cursing him a bit for not making the book a few hundred pages longer.

          I shall. It actually does sound like a great book and I like true crime and history so it’s a no-brainer.

          Cassandra Lite in reply to angela. | July 2, 2012 at 3:42 pm

          Guilty, yes. Noir never goes out of style. Our current politics proves that! No amount of cynicism actually encompasses reality.

No wait, it’s a fee, er no a charge, no it’s an assessment, an investment, oh nevermind, just shut your mouths you racist pigs, get out of the line unless you’ve got your ticket to see the Dr.

If a penalty is a tax, I guess then I can claim traffic tickets under “Taxes Other”

Taking yet another stab at it?

I’ll be sitting this one out.

I’ll check in to see if anyone finds a way to make sense of it all.

Good luck, troopers.

    ALman in reply to Browndog. | July 2, 2012 at 2:28 pm

    Sure. Sure! Now, your true colors show through.

    Let the rest of us do the work, while you sit out. Then, you’ll want to reap the benefits while the rest of us have worked out or even strained our “little gray cells.”

    JayDick in reply to Browndog. | July 2, 2012 at 2:44 pm

    It’s hard to make sense of the nonsensical. But, it seems to me that for some reason (what it is is another discussion) Roberts decided that Obamacare should not be overturned by the Court. Starting with that conclusion, he found the best reasoning he could to support it. Exactly the wrong way to decide a legal issue, but it is obvious to me that’s what happened. It’s very disappointing.

I’m still trying to wrap my head around how, if it’s a tax, there can be waivers given to some people on the basis of their religion, e.g. Muslims. Or how, if it’s a tax, it’s appropriate to tax otherwise equally situated independent young adults who don’t have parents to put them on an insurance policy…

So, those waivers are tax exemptions now?

The big problem with Romney’s Campaign is that Romney is not Newt Gingrich. So the campaign is at a loss of words on how to deal with intellectual shenanigans with the clarity Newt would be able to because at some level Romney doesn’t really believe in anything other than that Romney should be President. Everything is fungible. So when a Fungible candidate come up against a fungible Supreme Court on fungible law, the Funginess cancels itself and leaves the rest of us in tears over fleeting hopes of saving our Republic.

Bill of Attainder

Definition: A legislative act that singles out an individual or group for punishment without a trial.

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”

Just throwing it out there….

I think that there’s an easier way to look at this, that everybody seems to be ignoring.

The Supreme Court called it a tax, and said that it was a valid action under Congress’ powers to lay and collect Taxes under Article 1, Section 8 [1]. It just happens to be a DIRECT tax with an “escape” clause (whereby if you perform some action you are excused from paying the tax).

Even though Article 1, Section 7 [1] demands that all bills for raising Revenue shall originate in the House, that is not what this bill described as (because theoretically this bill was to be “revenue-neutral,” nor does a bill raising Revenue necessarily have to be a tax, either (there are, at least theoretically, other methods of raising revenue).

Just because Congress had forgotten that it had the power to directly tax (or had been frightened into not seriously exercising it in about 100 years due to the backlash) doesn’t mean that they had lost that power, merely that they were not exercising it in order to play “class-warfare” games.

It is an exceedingly fine needle to thread, but Chief Justice Roberts apparently thinks that the Democrat Controlled Congress threaded it (with a little interpretational help from him).

The argument for Romney to make is simple and concise:

The Democrat-Controlled Congress prior to the 2010 elections forced through what they KNEW was a tax, even though they called it a penalty. The Supreme Court AGREED with the Democrat Party that the Democrats were RAISING YOUR TAXES, but said they, as the party in power in Congress, had the authority to raise your taxes in this manner. The current Democrat in the White House, President Obama, signed that TAX into law, and in doing so broke his promise not to raise taxes on anyone making under $250,000.


The fact that Romney is not MAKING that argument shows exactly WHY he’s a weak candidate.

its the Chewbacca defense.

it doesn’t make sense.
its a horrible law that screws most people. for the record I am one that would make out like a bandit if I accepted gov handouts. Not taking hurts us, but its wrong.

“The fact that Romney is not MAKING that argument shows exactly WHY he’s a weak candidate.”

In the words of the late Janis Joplin, “It’s a heart; nothing but a heartache”!

1. I don’t want to talk down the presumptive nominee during the campaign, but at some point reality must be acknowledged.

a. The whole country is buzzing about the SCOTUS decision. The Romney campaign had more than full three days to plan their response, and this lame BS is the best they could come up with?

b. After Fehrnstrom’s Etch-a-Sketch gaffe, I urged that Romney fire him. That gaffe was Fehrnstrom’s fault. By not firing him, Romney owns the current botch.

2. Chief Justice John Roberts has done more damage to the Supreme Court’s legitimacy than if he had stayed with the conservatives or clearly sided with the liberals. Way to go, supergenius!

3. a. Memo to MItt Romney: When people see a weak horse and a strong horse, they are naturally attracted to the strong horse. I am getting the uneasy concern that you could make Obama—Barack Obama, for heaven’s sake!—look like the strong horse in the campaign.

b. Memo to John Roberts: Complete the following sentence, which I gather was not covered during your LSAT prepping. When you try to please everybody, you end up…

4. A shot across SCOTUS’s bow is needed after the election. Perhaps a term limit amendment should be seriously discussed. Alternatively, maybe the Chief Justice position can be legislated, without an amendment, to rotate among the Justices.

5. Standard disclaimer: I’ll admit being wrong about Roberts if events prove him out.

NC Mountain Girl | July 2, 2012 at 3:09 pm

I wonder how many of the pundits who loudly hailed the nomination of the super smart, sterling credentialed Roberts now wish they had stayed quiet when Harriet Miers was nominated.

Did in fact Roberts’ ruling positively characterize the mandate as a tax? Or did the ruling basically say, “It would be Constitutional if it was a tax, and that’s close enough”?

After all, one administration lawyer did defend the Act as a tax before the Court (link).

But if Romney is agreeing with Obama that the mandate is not a tax, then Romney may be setting up to argue that the mandate can thus be nothing else but an unconstitutional exercise of Congress’ commerce-regulating powers, which the Robert opinion did explicitly hold.

Hence, Mittens is leaving the door open for him to later say he will not enforce it because it is unconstitutional.

But again, does Roberts’ opinion actually say the mandate is a tax, or just let the mandate stand because it would have been Constitutional if it had been passed as a tax.

    See page 44 of the Slip opinion CJ Roberts. First full paragraph:

    “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our roleto forbid it, or to pass upon its wisdom or fairness.”

Abraham Lincoln asked, “How many legs does a calf have if you call its tail a leg?”

His interlocutor: “Well, five, of course.”

Lincoln: “No, it still has four.”


Henry Hawkins | July 2, 2012 at 3:17 pm

Roberts essentially shot the arrow, then drew the target around it. In science, such results are thrown out as unreliable. In gubbermint, no such standards or goals impede the practice.

And just to show how long this sort of linguistic sophistry has been going on, I bring you Plato’s Euthyphro:

Euth. Piety, then, is that which is dear to the gods, and impiety is that which is not dear to them.

Soc. … That thing or person which is dear to the gods is pious, and that thing or person which is hateful to the gods is impious, these two being the extreme opposites of one another. Was not that said?

Euth. It was.

Socrates lays the trap:
Soc. … But I will amend the definition so far as to say that what all the gods hate is impious, and what they love pious or holy; and what some of them love and others hate is both or neither. Shall this be our definition of piety and impiety?

Euthyphro plunges into it:
Euth. Yes, I should say that what all the gods love is pious and holy, and the opposite which they all hate, impious.

The trap is closed:
Soc. The point which I should first wish to understand is whether the pious or holy is beloved by the gods because it is holy, or holy because it is beloved of the gods.

And so: is the Act Constitutional because the Court says so, or did the Court say so because it it is Constitutional?

Or is the Court playing the role of the third umpire in this baseball anecdote:

Three umpires were boasting about their skills.

“There’s balls and strikes,” says the first, and I call ’em as I see ’em.”

The second says, “There’s balls and strikes and I call ’em as they really are.”

Retorts the third: “There’s balls and strikes. But they ain’t neither one until I call ’em.”

memomachine | July 2, 2012 at 3:47 pm

Fehrnstrom is an idiot. What the issue is that the -federal- mandate is a tax while the Massachusetts -state- mandate is a penalty. They are two separate things and should not be conflated.

    ALman in reply to jimzinsocal. | July 2, 2012 at 4:25 pm

    We’re in July already. If Romney is planning an all-out campaign, I hope he’s not waiting until September. Or, are we witnessing McCain version 2.0?

casualobserver | July 2, 2012 at 4:17 pm

Check out the Merriam-Webster definition of ‘tax’ for those of us who aren’t legal professionals:

The argument to the SCOTUS including calling it a tax. The SCOTUS tells us it is a tax (or only allowed as a tax). Us commoners see it as a tax. How can Fehrnstrom or the Dems be taken seriously in their effort to NOT call it a tax??

    Milwaukee in reply to casualobserver. | July 2, 2012 at 4:37 pm

    You looked in the dictionary? Boy, you’re really reaching there.

      casualobserver in reply to Milwaukee. | July 2, 2012 at 5:15 pm

      @Milwaukee – Why is finding the most basic definition a reach? My point is to show that the highest legal ruling in the land defines it as a tax, that in desperation the administration (sotto voce) argued it was a tax, and one of the most referenced dictionary’s definition (first definition in order) fits as well. It’s a tax. Fehrntstrom either mispoke or has some other political motive that he cannot fulfill with such a dumb position. The administration is clearly political in all they do, and running from the label of tax is not a surprise.

        Henry Hawkins in reply to casualobserver. | July 2, 2012 at 5:22 pm

        He may be referencing the George Stephanopoulis interview with Obama where George cited a dictionary definition of tax. Sarcasm doesn’t always transfer well to print.

Roberts’ ‘logic’, twisted though it be, is irrelevant – the plain language of the law says it is a penalty, not a tax. There is no ‘there’ there. The government had to wholly invent the tax argument after the fact hoping to find some way to justify constitutionality to the SC if the commerce clause argument failed. That Roberts allowed them to get away with that scam is despicable, calling into question his fealty to the document he took an oath to uphold (almost as bad as Ginsberg, who has publicly dissed the Constitution, if you ask me). As my respect for Roberts has plummeted, however, my respect for Anthony Kennedy has simultaneously skyrocketed.

This is the worst case of ‘legislating from the bench’ I’ve ever seen. He had no business giving them a played Mulligan. To now listen to Obama and Pelosi (even a Romney spokesman, for cryin’ out loud) insist that it’s a penalty, not a tax, never mind that Supreme Court waste of time, is galling in the extreme. And to think how razor-close it was to failing at every step and how it required nearly a dozen slices of Swiss cheese holes lining up for this slow-motion plane crash to happen is incredibly frustrating.

Aren’t all taxes at the Federal level born in the House?
Obamacare was not.
Is this a valid consideration? This law was not written with due process…

    Bills for raising REVENUE must originate in the House. Since this bill is designed to be revenue-neutral (we know it isn’t, but that isn’t the point) it doesn’t violate the provision of the Constitution.

At the end of the day, I will need to open my wallet and take out money. Or find it missing from my paycheck. Then I will smile, nod, and hand my money over, and be grateful that I can leave without further penalty. I will probably back out of the room bowing.

My understanding is that this will only be a “civil” tax. However, at some point people will spend time in jail for not paying the … whatever it is.

All of this B.S. just demonstrates how irrational Roberts’ opinion is. How much better off would we be as a nation, and how would the rule of law triumphed, had Roberts simply found that the Congress did not have the power to pass Obamacare under the Commerce or Necessary and Proper Clauses, but did have the power under the tax clause – but since Congress expressly declined to utilize the tax power, the Act is unconstitutional. Congress is free to go back and pass it as a tax. End of story. Not a partisan opinion. End of the Progressive Power grab until the next time. Roberts misused the awesome authority with which we invested him.

The big question is what, if any, reason is there for John Roberts to move away from his left-ward tilt in the last two SCOTUS decisions? If not, how far will he tilt?

Will there now be a solid 5-4 leftist gang forming the basis for most decisions? Will Roberts, Sotomayor and Kagan form the enduring coalition for a leftist, activist court for the next several decades?

Once you have gone over to the “dark side” there is precious little reason to come back. Of course, the leftists will pretend to love the man while the laugh at him. And his former allies on the court will have precious little reason to trust him again.

Roberts may think he did this to save the integrity of the court, but that is like destroying the village to save it, or abandoning free market principles to save the free market.

Roberts may face a very lonely holiday season in DC…

This nicely sums up my current feelings about this fiasco:

Think about it. George W. Bush nominated John Roberts to the Supreme Court not once, but TWICE.

Obama is finally right.


TeaPartyPatriot4ever | July 3, 2012 at 12:57 am

Please, these political hack’s bantering creed words of Obamacare’s forced individual mandate, that was issued by decree as constitutional by Chief Justice John Roberts and the US Supreme Court, that it is a Tax, albeit according Chief Justice Roberts to be an implied tax, and of course not a provision empowered under the Commerce Clause.. and the other side of the political spectrum aisle who claims it to be a fee or penalty, and the switching back and forth on what they claim it to be, or not to be by both sides, is typical of all of these political hacks to divert attention from the fact that it doesn’t matter what you call it, a tax or not a tax, it is UNCONSTITUTIONAL, meaning it is a legal way to allow the govt to force and compel the citizens of this Nation to buy something they do not want, or need, just because they put their govt stamp of approval on it, does not make it right and constitutional, regardless of what it it is called, and regardless of who says it.

This is why they must all be removed from office and power as soon as possible, and replaced with competent constitutional conservative people at every level of govt, and the Judiciary.

    WarEagle82 in reply to TeaPartyPatriot4ever. | July 3, 2012 at 8:14 pm

    This is why they must all be removed from office and power as soon as possible, and replaced with competent constitutional conservative people at every level of govt, and the Judiciary.



TeaPartyPatriot4ever | July 3, 2012 at 12:58 am

quote- “The Supreme Court is not the Supreme Court because it’s right, it’s right because it’s the Supreme Court.” unquote-

The meaning of this is, is that what the US Supreme Court has now become, is just an official judicial sanctioned ideological rubber stamp decree for govt tyranny and oppression of the people, instead of an independent branch of the Federal govt, to oversee and maintain the Rights, Freedoms, and Liberties of the American people, aka the sovereign individual, under the US Constitution, are protected and not usurped by the other braches of the federal govt.