I found another thing about the “Roberts Tactic”
May be exactly what he was thinking, as I’ve been saying, or maybe we’ve been fooled.
Every liberal citation to Wickard will be countered by a conservative citing to Chief Justice Roberts’s opinion: “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance.” (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)
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.
Didn’t even know where to start OR stop on that clip. And, of course, pirating the whole thing is wrong. But it is rather a thoughtful article indeed.
Let us make this gamble pay off!
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I understand the sentiment behind that statement, but the government can still punish you for not buying what they tell you to and if they make the tax high enough it will force people to buy what they want us to. Sure it might not be by using the commerce clause, but the result is the same.
CM
There is no there, there.
There is no 5 to 4 for ruling limiting the commerce clause. 5 justices didn’t accept the premise but it doesn’t create a binding precedent. The only one who proffered an opinion was Roberts but it was not joined by 4 other justices.It falls into what lawyers call dicta that and 5 bucks will get you a footlong sandwich at Subway.
And even it it were precedent we see what happens to precedent the fascists don’t like. Then the hallowed concept of stare decisis is forgotten and the world consensus and the law Zimbabwean witch doctors is used to create justification for laws that clearly don’t pass muster. If the Obama is able to replace one more of actual conservative or if the RINO fraud Romney gives us another justice who will “grow[stupid and lawless]in office” like Stevens or Souter or now Roberts.
No one not even the four dissenters mentioned Wickard as far as I know. Regardless of whether Wickard was proper, and I know Scalia and Thomas do not think so, this case, by definition was outside of Wickard. In order to circumscribe Wickard they would have to adjudicate a case within it’s scope and say it is not valid.
As for any limitation this phantom ruling has was directly eviscerated by making EVERYTHING an object for taxation which was not the case before this (the crucial discussion starts at about the 6 minute mark). Someone should ask Roberts where the limiting principles are with that.
For further analysis the whole is at therightscoop
It does not matter in practice whether you force some one to act because of penalty or tax you are forcing them to act. They have now conflated the two concepts and created a big and obvious precedent that the Supreme court can openly determine the semantics of a law even when there is no confusion as to the words being use. Combine that with the fact the Roberts also inserted a severability clause he has so breached his duty as CJ SCOTUS that he needs to be removed.
The author is rather pollyanish in his struggle to spin this into something good. The fact is he would have gotten the same circumscription of Wickard if he had voted with the dissenters plus he probably could have gotten them to sign on to his dicta to actually make it a precedent and rid America of a law that was made with equal helping of deceit, bad faith and lawlessness.
No the Chief Justice was concerned with his reputation and not the constitution. He didn’t want the opprobrium of those looking to dismantle the constitution wholesale. So he became a judicial activist pure and simple to stem the specious cries of judicial activism. These charges would have been false as it is the job of the court to invalidate laws that are not in line with the constitution. Roberts by doing what he did became exactly what he was trying to avoid a judicial activist. By his conceit he has given his imprimatur to lawlessness. By his vanity he may have driven the last spike through the concept of limited government.
Count me in the “liberals got pwned and don’t know it” camp. If Roberts was simply concerning with his reputation, why not make it with the Citizens United case? Why wait until now? I need to see some support to be persuaded by this point.
If this was such an all-fired victory for the Left, why did the liberal wing of the Court write such a snarky concurrence criticizing Roberts? I think they swallowed language in the majority opinion they didn’t like in order to obtain the result they wanted: upholding of the ACA. They were seduced by the glittering shiny ring of ObamaCare and held their noses to get it.
Non-lawyers focus on the result. Lawyers focus on the way the result was obtained. In the long run, this is a political problem, not a judicial one. Yes, Roberts could have done the constitutionally correct thing and ended the ACA – FOR NOW. Liberals would be back with it, but running against the Supreme Court as well as Republicans “obstructing” it. Repealing it will do the job for good.
But henceforth, Congress will have to sell its predations under the tax flag, and Republicans can beat them up on it. Assuming, of course, that the Party Of Stupid is up to the job. If not, nothing the Supreme Court does will save the Republic.
Here is more support why those looking for a silver lining to the lawless decision are just whistling past the grave yard(yeah I know mixed metaphors so sue me. That probably been made constitutional by this pile of shit piece of lawlessness too) Fortunately this is not on the pay side but I will excerpt some important points.
This was based Robert’s notion that it could reasonably construed that way. There was no dispute in the text of the law of how it should be construed. again this was a post hoc argument made for the benefit of politics not legality as there was no ambiguity in the text of the statute only in the minds those who were trying to have it both ways.
And it continues
This is key. The reason the 16th amendment had to be passed is that the constitution did not specifically designate income as a basis for taxation. By not labeling this type of tax as one of the three enumerated i.e. constitutional types he has created a new species that is not anywhere evident except in his own convoluted logic. Does this sound like an originalist to you? He has de jure amended the constitution as to the taxing power a right that was NOT granted to SCOTUS by the constitution.
Reblogged this on Boudica BPI Weblog.
Wiccapundit
I don’t recall that Citizens United had as much of build up or as pervasive an effect. PPACA alters the social compact in profound and unprecedented ways. Roberts did not want to be seen as taking “healtcare from the poor” and engaging in a “war on women” of course waging war on the rest of us is fine apparently. Say what you want about Citizens United it’s effects aren’t nearly as prone to fascist demagoguery. The only way you are ever going to get the evidence you seek is for Roberts to confess he was a coward. If he does he surrenders whatever remains of his diminished credibility.
This is called mocking. They know that his opinion is merely his opinion. There is no decision saying Wickard goes this far and no farther. However he could have had that if he voted with the dissent. I will again direct you to Mark Levin and for good measure Professor Jacobsen at Legal Insurrection. Roberts speaks for himself only. That and 7.99 will get you a grande frappe cappuchino at Starbucks. As precedent it is useless. And even if this was precedent what happens if the composition of the court goes from nominally “conservative” to liberal. The next time a case comes up under that scenario the liberals will overturn that precedent as fast as they can read it. We all know know that stare decisis only applies to liberal precedents.
And prey tell just what process was used. The result was attained by a lawless, bad faith congress ignoring the clear language of the constitution that was then upheld by a justice who rewrote the statute in excess of his authority to give legal imprimatur to the lawless actions of a renegade congress and criminally malign executive. This sets a precedent. Roberts dicta on the commerce clause does not.
People give the benefit of the doubt to those they elect to act with good faith and within the law. Now you could make a case that the people should have known better than to give power to such as the current NDSWP, I would even agree with you if the duplicitous Arlen Specter hadn’t committed what was tantamount to electoral fraud by switching parties, the Democratic Farm and labor Party wasn’t given a pass on serious voter fraud to elect purported funny man Al Franken to the clown show known as the Unites States Senate and they hadn’t smeared the late Ted Stevens with what turned out to be a malicious prosecutions. Where are you’re precious political solutions when faced with a party that has summarily rejected honest elections. Even now Obama is gearing up to taint any republican victory as fraud. Why do you think Nazi Piglosi et.alare out there claiming that the criminal Holder is being victimized because he is pursuing a non-existent voter suppression.
Roberts job and oath was to protect the constitution regardless of the folly of the electorate any other reasoning is a violation of his oath. If he let other considerations override this, and there obviously was, then he is unfit for his position. By Roberts reasoning a party can capture the government by fraud and violate every governing covenent and there is nothing the courts will bother themselves about. If that’s the case Marbury vs Madison has been effectively overturned.
So if it’s repealed do you think liberals won’t re-introduce this mess if they get the chance. Does HillaryCare ring a bell???? Again political considerations when considering this are moot. If Roberts considered them he is unfit to be there.
He has done grievous if not fatal harm to the constitution by granting a theoretically unlimited power to tax and a precedent that the elected branches DO NOT HAVE TO PORTRAY IT AS SUCH because they can depend on the court to use legal metaphysics to mystically transform it into a tax by the “Roberts Resonable Construction” doctrine. Plain language be damned. He has given the elected branches the ability to pass taxes under any name they wish with the reasonable expectation that the court will construe it as a tax. They can then demagogue against the court,which by the way the NDSWP is doing now, that it wasn’t a tax those judicial activists who are taxing you. Of course they will never admit that if it were a penalty their precious monster would have to be slain but since when have facts mattered to fascists.
Roberts has set back the cause of limited government by a generation with this hack decision. While there is political recourse Romney can not make the case without being portrayed as a hypocrite so the politics at best are neutral. Some genius that Roberts. The legal equivalent of Sun Tzu and Clausewitz all rolled into one. Yeah right pull the other one.
Actually Roberts is doing the work of three men: Moe, Larry and Curly.
Here is some more evidence that Roberts did this to protect SCOTUS from leftist hypocrites. to avert “crisis of legitamcy.”
James Taranto’s take on this on the Best of the Eeb:
Roberts sold our liberty for the price of some temporary security for himself as even as mad as we are we already know that the lefty has their stories written to undermine the courts with false outrage. So in order to head off the phiny undermining to the courts integrity his decision substantively under mines the courts credibility.
To paraphrase a famous apocryphal quote by Peter Arnett related to Vietnam he burned the courts credibility down to save it.
Ooops, actually that LI story says the opposite. I’ve gotta read more carefully.
Professor Jacobsen is less than convinced but my pervious posture stands we will never know for sure unless Roberts confesses.
The plot thickens however
An excerpt from the base article.
h/t Volohk Conspiracy
If this isn’t putting the image of the court above the law I don’t know what is. If he was willing to try and convince Kennedy to think of appearances then it is not far fetched that he made his decision on the same considerations.
Trudat.
FOR NOW is the thing. It must be killed stone ass dead, and it’s spirit sent across the void!
FX Phillips:
Arrggggh. I wrote a long response to your comments, but I lost it. I’ll try to reconstruct it.
Your comments were obviously thoughtful and deeply researched. I respect Levin and Jacobsen, but there are others of good reputation on the Right who hold a contrary view. I’ll read the links in your comment and remain open to having my mind changed by cogent argument and verifiable facts. I have simply wanted those who claim Roberts was a stealth liberal to provide more solid evidence that he ruled the way he did because of his concern for his reputation. If he really did so, we are in for decades of trouble.
In my experience, Citizens United has been as much of a hot-button for the Left as Roe v. Wade is for the Right. Citizens United may not have been on the radar of the public as much as Sebelius, but it’s been percolating pretty well. The week prior to the Sebelius decision I listened to many on the Left still bemoaning how corporate money has corrupted the elective process (as if Obama hasn’t spent money on campaigning like a drunken lottery winner). Roberts has been CJ for seven years. Given his life tenure, I would have thought he would have shown his liberal stripes sooner, if he was so inclined.
Wickard v. Filburn may not have been explicitly rebuked in Sebelius, but we can hardly expect the edifice of liberal (and Liberal) interpretation of the Constitution to be corrected overnight, or in one fell swoop.
Dicta is dicta, and it is what it is. Roberts’ dicta in Sebelius on the Commerce Clause isn’t without value, however. See, e.g., Footnote Four to U.S. v. Carolene Products. That little landmine first established the “rational basis test” for Federal legislation, which is absurdly easy for Congress to meet. Seventy-five years on from that decision, that dicta has had a wide-ranging and damaging effect on our constitutional jurisprudence. And they still teach that case in law school so far as I know.
Your comments about the morons in the “Greatest Deliberative Body in the World” are entirely accurate and require no comment from me, save to note Milton Friedman’s abjuration that we don’t need to elect the “right” people to office, we need to make it politically desirable for the wrong people to act in the right way. This is a political problem, and relying on the SCOTUS to save us is a fool’s errand.
My main concern is that conservatives not fall prey to (Insert) Derangement Syndrome, and begin foaming at the mouth like the Wisconsin Weeping Man after the Walker recall. We are, after all, tougher than that – we have always had to fight uphill against the embedded Leftism of the media, the academy, and the entertainment industry.
As Thomas Paine said: “Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.”
Thank you for the effort demonstrated by your comments. We all have to remain active and engaged at every political level. Feel free to drop by my site to comment if you care to.
Thank you for your temperate and considered response.
I think I might have some further thoughts based on your comment but I think I have wasted enough of CM’s bandwidth with this discussion.
Give me a link and I will respond.
Thank you.
My site is at http://www.redstatewitch.com if you’d like to comment, or you can click on the link to the right in CM’s blogroll. I’ll have to retrieve your first entry from the spam filter, which will then allow you to post comments regularly. I hope you’ll stop by.
I’m very happy to have a member of my site with the intellect and clarity of FX. If he comes over to yours, you’ll be highly impressed! He’s a Rottie as well!
Thanks for the kind words CM
If anyone is interested here is <a href=my response to Wiccapundithttp://redstatewitch.com/wordpress/?p=3195&cpage=1#comment-4301> it is long and tedious but when have you come to expect anything less.