Roberts’ job is to protect the Constitution, not the Court [Reader Post]

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“It is not our job to protect the people from the consequences of their political choices,” said Chief Justice Roberts in summing up the Court’s upholding of Obamacare (at 10:25 in the ABA transcript).  Wrong. It most assuredly is the job of the Court to protect the people from their own political choices when those choices violate the Constitution, and if the Court fails to do this—if it instead decides that it should stay out of contentious political issues in order to remain above the fray and keep its neutrality from being questioned—then it has to find some way to read the Constitution so as to declare the clearly unconstitutional as constitutional, and this is exactly what Roberts did.

Faced with an opportunity for the Court to finally draw at least one very belated line on the limits to the federal  government’s post-New-Deal power under the commerce clause—that the government cannot actually force citizens to purchase products that they do not want to buy—Chief Justice Roberts chose instead to kick flat a second barn door to unlimited federal power, overthrowing a long standing prohibition on the use of taxation as a means of punishment for breaking the law.

“Because the Constitution permits such a tax,” said Roberts, “it is not our role to forbid it, or to pass upon its wisdom or fairness.” No, the Constitution most certainly does not permit such a tax. The dissent of Justices Scalia, Kennedy, Thomas, and Alito is authoritative. Robert’s position is an abomination:

Our cases establish a clear line between a tax and a penalty: “ ‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’ ” . . . In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

Roberts did not “gut the commerce clause,” or limit in any way the vast unconstitutional expansion of federal power under the New Deal Court

Roberts’ refusal to justify Obamacare by creating even further expansions of the commerce power is part of the dicta of Roberts’ Obamacare opinion, it is not acta. That gives it little precedental value. Stare decisis applies to acta (the actual basis on which the ruling was made) not dicta (mere commentary on other matters).

Numerous commentators,  right and left, are claiming that it was some kind of brilliant conservative strategy for Roberts’ to keep his head down while finally laying in some post-New-Deal limit on the commerce clause (infinitely weaker than the founders intended), but I’m with Professor Jacobsen: anyone who thinks that adding an unlimited federal power to tax for the general welfare to the existing nearly unlimited federal power under the commerce clause is a double fool.

There may be some current political advantage to Republicans in leaving it to Congress to overturn this deeply unpopular law but for the preservation of our Constitution it is an unmitigated disaster and the longer term political consequences are equally devastating. In practice, a main application of unlimited government power is the buying of constituencies, the effects of which are often transformative.

Social Security is clearly unconstitutional. If it takes an enumerated power to establish the Post Office then it must require an enumerated power to enact the socialization of retirement, but once allowed by the Supreme Court it is very hard to overturn politically, no matter how much damage it is doing. Social Security is aptly labeled “the third rail” of American politics. Old people have been bought,  fundamentally perverting our republican system of government. The people are supposed to be the masters, government the slave, but the slave went and bought the masters.

Nothing would be more transformative than Obamacare, which as Professor Jacobson puts it: “empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.” In addition, it is designed to unionize a full seventh of the U.S. economy, creating a vast fundraising apparatus for a traditional Democratic Party constituency. Quoting the good professor again, “this was the hill to fight on for any conservative Justice of the Supreme Court.”

Note also that if keeping the court out of big important political questions is embraced as a conservative standard of jurisprudence,  it amounts to unilateral disarmament. The left doesn’t believe that the Court should stay out of big important political questions. Just the opposite, they believe that progressive justices, acting as philosopher kings, can lead our backwards electorate in a better direction than its base nature otherwise follow.

To oppose the imposition of such “evolving standards of morality” from above conservatives on the Court need to strictly enforce the Constitution as written, so that if change is to come to the Constitution it will not to come from above, “living Constitution” style, but from the people.

Roberts caved to political pressure, the ultimate failure for a Supreme Court Justice

The wording of the opinions pretty much proves that Kennedy’s dissenting opinion was originally written as the majority opinion, indicating that Roberts switched his vote at the very last minute, leaving insufficient time to do much more than re-label the majority a dissent. That late switch indicates that Robert was responding to the flood of highly inappropriate threats directed at the court by President Obama himself and by his backers, charging that the overturning of Obamacare would de-legitimize the Court.

Obama’s personal attack went so far as to deny the principle of judicial review:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

Since then, the threats and warnings from our Democrat-controlled media and the left-wing elites that dominate our law schools have steadily become even more hysterical. Roberts knuckled under to this political pressure, which is the definitive failing for a Supreme Court Justice. If he can’t stand the heat he shouldn’t be in the kitchen.

Roberts has clearly established an ultra-cautious approach to Supreme Court jurisprudence so the threats that were being leveled went right to the core of his weakness. Having the Court step in and decide a hotly contested political issue would leave the Court open to accusations of meddling in the business of the “political” branches and weaken its standing as a neutral arbiter of the law. When these arguments were posed as direct threats Roberts gave in to them, as if his job as Chief Justice is to protect the Supreme Court from the threats against it, but it bears repeating: that is not his job.

Justices are supposed to protect the Constitution and sacrifice the Court for the Constitution if necessary. They are supposed to throw their bodies in the way of tyranny. That is the oath that Roberts took and that is the oath he violated. It is the same thing the New Deal court did. With its independence threatened by FDR’s court packing scheme that Court made “the switch in time saved nine,” sacrificing the Constitution to save their particular institution.

It was the greatest betrayal in American history and now Roberts has done it again. The man is unfit for the job and if Romney is elected president his first appointee to the Court should be named as Chief Justice, demoting Roberts to associate. My prediction going forward is that Roberts will over time become a thorough-going man of the left, not out of any conviction, but to create a dignified pretense that his turn to the left on Obamacare was not an act of cowardice.

Applauding himself for proving his non-partisanship when he’s supposed to be partisan for the Constitution

Proper limits

Our Constitution could have been saved. Now it is going to have to be re-written with its limitations on government power stated in the most explicitly narrow terms. The power to tax for the general welfare will have to be stated explicitly according to Madison’s interpretation, that it only empowers the federal government to tax as necessary to fund “necessary and proper” exercises of the enumerated powers (ditto for the “necessary and proper” clause).

For the interstate commerce clause, we’ll have to state explicitly that it is only intended to give the federal government the power to stop the individual states from engaging in protectionist policies. It does not give the federal government power to regulate things merely because they affect interstate commerce, no matter how greatly (and certainly not no matter how minutely). Neither does it give the federal government the power to address “coordination problems” more generally. “Coordination problems”—like having the states compete to have the lowest taxes and create the best business environment, or having them face the consequences of offering relatively promiscuous welfare benefits—are not actual problems. They are a feature of our federalist structure, not a bug.

And on down the line. We have had 200-plus years to find where the Constitution was not written clearly enough to contain the drive for expanded federal powers that it sought to contain. Weld every leak shut and hope it can last another 200 years, all of which would leave a greatly diminished role for what remains of the Supreme Court, charged only with beating back every attempt of the government to expand its powers. The people’s representatives must be ordered at every turn that if they want to legislate beyond the narrowly enumerated powers of government they will have to pass amendments to that effect, the way our republic was always meant to work.

29 Responses to “Roberts’ job is to protect the Constitution, not the Court [Reader Post]”

  1. 1


    Chief Justice Roberts may have thought that he was securing his legacy in the keeping of Justice Marshall. Instead, he has just secured his legacy as a justice who could be intimidated in the vein of Justice Charles Evens Hughes. And if he felt he was securing the opinion of the populace that the SCOTUS was a trustworthy body worth respect, well, that too, has also gone south.

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    And now it is being reported that Chief Justice Roberts actually changed his opinion late in the game, after having first joined with the conservative side of the court to rule the ACA unconstitutional. It is said that some of the justices refuse to read anything dealing with a case they have to hand down a decision on (Thomas is known for this) but that Roberts is a voracious consumer of news articles that deal with the public opinion of the court. If that is so, perhaps this unusal action on the part of Senator Patrick Leahy, chainman of the Senate Judiciary Committee had something to do with Roberts apparent switch.

    On May 14th, Leahy delivered a speech on the floor of the Senate that was directly squarely at Chief Justice John Roberts:

    “I trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” said Leahy. “The conservative activism of recent years has not been good for the court. Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to deter to Congress in this matter that so clearly affects interstate commerce.”

    Leahy was clearing sending a shot across Robert’s bow, letting the Chief Justice know that he should keep his place (go to the back of the bus, so to speak) and give deference to the supreme power of Congress, not act as the head of a co-equal faction of our government. The pressure put upon the SCOTUS, and especially Chief Justice Roberts by not only the President, but the Democrat side of the Senate, as well, is unheard of since the days of FDR who threatened to load the court with one more justice for every justice over the age of 70 (it would have given FDR six more justices at the time).

    If Roberts did in fact, decide at a late date to side with the liberal side of the court based on the threat of Democrats railing on the Roberts court as inadequate and not acting in the best interest of the nation, and not giving proper respect to the Congress, he should resign for he is not qualified to defend the honor of the court.

    I caught a news clip of a reporter who had been sitting in the Court room when Roberts read his opinion. (forget who she was) She stated that Justice Kennedy was clearly angry during Robert’s entire reading of his opinion. Why was Kennedy so angry? Was it because he knows the real reason Roberts rejected all Constitutional limits on the Congress and did nothing but find an excuse (Congress’ power to tax) to give a ruling that would take the heat away from Roberts and had, in fact, basically rewritten the statute to suit the left wing?

    Alec Rawls is correct; Roberts duty is to defend the honor and integrity of the Constitution, not the public opinion of the Supreme Court.

  4. 7

    Alec Rawls

    The perception that Roberts’ saw himself as trying to protect the Court from accusations of partisanship is getting wide traction. Krauthammer wrote an entire piece on this premise , though he seems to lean towards the idea that this was clever on Roberts’ part.

    Retire05 makes a comparison to Chief Justice Charles Evans Hughes, who knuckled under to the pressure of FDR’s court packing scheme (the justice whose “switch in time that saved nine”). I see that W’s attorney general John Yoo also likens Roberts’ actions to the abject surrender of Hughes. Unlike Krauthammer, Yoo gets to the heart of the matter:

    Hughes sacrificed fidelity to the Constitution’s original meaning in order to repel an attack on the court.

    Hard to imagine how a supposedly conservative Justice could think that was the model to follow.

  5. 8


    “It is not our job to protect the people from the consequences of their political choices.”

    With that statement, Roberts is declaring that his decision is not political. I think the phrasing also implies that he personally disagrees with the political philosophy that gave rise to the Affordable Health Care Act. Roberts separated politics and his personal political sentiments from the decision making process, which is exactly what a Supreme Court judge is supposed to do.

  6. 9

    Alec Rawls

    Greg: What else can Roberts’ reference to the politics of the issue mean but that he wants to keep the Court out of politically contentious issues? That means he is influenced by the politics of the situation. Justices are supposed to adhere to the supreme law of the land no matter how contentious the issue. Justice is blind, remember? Roberts states up front that he is not acting in proper judicial fashion. He is not blind to the politics, but rather puts it as his first consideration. This is how Roberts chose to introduce his ruling to the world. Politics first.

  7. 10



    Alec: It most assuredly is the job of the Court to protect the people from their own political choices when those choices violate the Constitution,… snip…

    Actually, Alec, it was the phrasing before your excepted quote that clarifies *when* the High Court should save the masses form their elected officials’ decisions. And that needs to be added here, en toto:

    Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

    Our deference in matters of policy cannot, however,become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.

    The questions before us must be considered against the background of these basic principles.

    The key phrase is “clearly demonstrated”. And what any single justice sees as “clear” is not what another may. Thus instances are rare where that “lack of constitutional authority” is abundantly clear enough to result in unanimous or heavily weighted decisions. In this instance, the Medicare Expansion blackmail was darn close, with the Commerce Clause coming in a close second to being “clear” in it’s unconstitutional authority.

    I’ve gone over and over this ruling, creating more and more bookmarks in the PDF to easily re navigate to. I’m not happy with the majority opinion outcome, but I can sure see where Roberts has a sound argument for his opinion, tho I see merit in the dissenting opinion.

    The largest disagreement between Roberts and the dissenting judges INRE the tax vs penalty is whether they believe the statute, as written, criminalized an individual who did not purchase healthcare. Roberts said no because choosing either the purchase, or paying the tax, put any individual within compliance with the mandate requirement, and it carried no criminal penalties. The dissenting judges believed that Congressional use of the words “shall” and “requirement” was, in fact making the act of not purchasing insurance unlawful.

    While I agree with the dissenting judges emotionally, and with most of their perspectives, I don’t agree with that one. And that’s the absolute deciding factor for Roberts designating this a tax instead of a penalty. In fact, you might say that the dissenting opinion did a fine job in arguing in support of the POTUS and Dems claim that this is a penalty, and not a tax. Not sure that should score them any bonus points, ya know. LOL

    What I especially liked about the dissent’s wrap up is that they noted this decision is likely to create serious strain upon the Union, most notably for what we’ve been doing for Massachusetts ever since Romney care… seizing tax dollars from the nation at large, and funneling them towards those who opt in to the Medicaid Expansion program as required via populous. As they said, this destabilizing political dynamic should have been introduced by Congress, and not the Court.

    But fact is, that destabilization *was* introduced by Congress by this very legislation. And it’s just as much judicial activism for the Court to attempt to save the nation from such destabilization of the economy by fiscally dangerous policies, implemented by an elected body, when there is an absence of clarity that it lies outside of some of their Constitutional powers.

    This complex notion of “saving the masses” has two diverging faces. This becomes painfully clear when we realize that, had Roberts not utilized the “two interpretations, one unconstitutional” precedent, we may have gotten the preferred result… but it would be just as tainted with deliberate judicial activism by the Court ignoring their historic roles to defer to genuine intent of the elected body when there is an interpretation of the statute clearly within their power.

    In other words, it is not saving the masses for the Court to declare legislation unconstitutional, ignoring the intent of the law, merely because of flawed legislative grammar. But it was prudent for them to save the masses when that flawed grammar was citing the Commerce Clause as their authority.

    The dissenting judges said the entire argument should have ended there. I would have agreed, save for Roberts’ bringing up that niggly “two interpretations, one unconstitutional” precedent. If one is talking about remaining true to our Constitutional conventional wisdom, it was never in the Founders intent that the court was empowered to negate the constituents’ elected officials work for structural flaws in language… but only to do so if it was clearly outside of their enumerated powers in all possible ways.

    As I said above, I can actually see merits in both sides of the arguments. Leaving aside my own personal preference for this to have been declared unconstitutional, based on Congressional stupidity for their inferior legislative construct, we’ve just watched nine top enchilada legal minds (altho that’s a stretch for Sotomayor and Kagen, but I’ll leave that aside… LOL) go thru these particular four elements of the law with a fine tooth comb. And more lawsuits are on the way, assaulting the same law. SCOTUS is not done with this yet…. just for now.

    Sometimes rulings don’t come down the way we prefer, but that’s the way our system is set up. Unanimity isn’t the norm in SCOTUS cases, and sure isn’t here. But I find this automatic response to accuse a Chief Justice of everything from bribery to political servitude somewhat disturbing and indicative of misdirected anger. Most of us never thought it would fly under the Commerce Clause, and it didn’t. But most of us never thought that the High Court would also have to consider it’s legitimacy as a tax. I’d say we were caught off guard by that even being a Constitutional possibility.. including the idiots that wrote and promoted this law. Live and learn.

    This should be a lesson to many that not all judges and lawyers see things alike. Nor can one be held as unquestionably right compared to the next. What ends up being the overriding final in a ruling can only be viewed within the final majority decisions of the Courts, or even our jurors. But unlike lower courts and jury cases, dissenting SCOTUS opinions are often cited in lower case courts and still wield value. Their opinion will not disappear, never to be referenced again.

    If nothing else has been achieved in the minds of some, the public will now be hyper astute as to how taxes designed to control our behavior are levied… and it will not sit well with a large number of us. Congress is now on the radar with their taxation powers, and their future endeavors will require that many of them pay with their political careers… as it should be.

  8. 11


    did you check on the decision about ARIZONA ALSO LOST THEIR CASE,
    on the same day, which was so important for her to win.

  9. 12



    “It is not our job to protect the people from the consequences of their political choices.”

    You and Roberts are both wrong Greg. It is the job of the Supreme Court to protect the Constitution from elected officials who pass laws that violate the Constitution.

    If you were correct Greg, then you would clearly have no problem with a Conservative majority elected Congress and President making laws to: Overthrow Roe V. Wade due to it being a 10th amendment regulatory issue or recognizing a human fetus’ “right to life” as being an unenumerated right. Or a law that requires all eligible Americans to purchase a firearm for their own safety and which applies a $2000.00 penalty (aka “tax”) to any eligible American who refuses to do so. Or with a Conservative passed and signed law that dissolves SEIU and other public employee unions.

  10. 14

    Alec Rawls

    All interesting analysis by MataHarley. I’ll just note that it was Roberts, in announcing the Court’s ruling, who separated out the quote about it not being the Court’s job to save the people from the consequences of their choices, and that the substance of his opinion backs this suggestion of politicization.

    For one thing, Roberts’ entire opinion is in terms of stare decisis. He never revisits what the proper interpretation of the commerce and tax clauses should be but simply takes the post-New-Deal interpretations as established. THOSE decisions were overtly political, driven by the Court packing threat, and yet Roberts is not even content just to take these precedents as given, but he goes on to substantially expand the tax power.

    From basic interpretative principles the post-New-Deal versions of both the commerce clause and the tax power are flat wrong. Both confer nearly unlimited federal powers, vitiating the entire structure of limited enumerated powers, which is exactly why these interpretations had earlier been rejected. So Roberts was just heaping political calculation on top of political calculation when he added his own layer of political calculation to the Court’s New Deal surrender.

    I think it would even be reasonable to impeach him. He violated his oath of office. He protected the Court over the Constitution, which is the most effective way to undermine the Court’s legitimacy.

  11. 15


    @Alec Rawls:

    Great analysis; good explanation to those of us not quite so deeply knowledgable within the complete picture!


    I agree with you as well and add that Roberts tried very hard to peel Justice Kennedy over to the liberal side without result, ending with deep anger by others such as Alito, Thomas, Scalia and Kennedy himself.

    I am very angry at Roberts for being so careless in his decision only to satisfy his selfish needs to be continously invited into his country clubs and, going so far as to even joking about in his last interview.
    His decision was not only shameful, but also a dereliction of this sworn duties to uphold ‘The Constitution’. He is the activist judge I’ve never dreamt of. He began his shameful behavior when he stood up for Kagan and, refused to recuse her because she clearly represented ‘The’ conflict of interest.

    It would be in his best interest to resign; if he is so easily influenced by politics and ‘how he looks’ and, not by the constitution, he has no business as ‘chief’ of the justices, nor being on the supreme court – the ultimate institution of the law. It is not the 9th circuit, where we expect such foolishness.

    Impeachment as noted by AlecRawls is another way, because he failed and was dishonest in his representation during confirmation. If he has one iota of integrity – he’ll resign.

    We should have paid attention to Ben Shapiro, who exposed Roberts during the confirmation hearing, that he was a wolf in sheeps clothing, and only another unreliable rhino.

    My biggest fear is, that this monstrous piece of unconstitutional malaise will be difficult to reverse, the mob is active to accuse us of everything – nothing new here; should Romney win – he signed almost the same mess in MA. How reliable will the establishment GOP to reverse this thing?

    Finally, I have learned that Justice is no longer blind in the US, the consitution a wothless piece of paper – ripped piece by piece for a long time, but untimately the past 3+ years by the narcissistic tyrant and his unelected crew in the white house and, currently engaged in stealing the next election. I am not so sure, if Romney is cut out for this gangster mobbing, bullying, lying, cheating, stealing and outright racism coming at him more ferocous than ever. He was and is not my choice, although we are forced in some way to accept him as the better of two evil.

    Has Gingrich spoken yet about Roberts screw-up?
    A Allen West, Sarah Palin, Ryan, Gingrich and the likes is a team we just about urgently needs.

  12. 16

    Alec Rawls

    Some illumination of just how political it was for Roberts to allow a vast program under the tax power that would never have been enacted if its funding had been described as by taxation: “Audio of Obama Lawyer Arguing Obamacare Is a Tax Stuns WH Chief of Staff Jack Lew”

    He helped the “political branches” pull a bait-and-switch on the American people, establishing that it is a-okay for Congress and the president to lie to the American people about what they are doing, and this is ON TOP of Roberts creatngt a blatantly unconstitutional expansion of a tax power that had already been expanded to blatantly unconstitutional extremes. Unmitigated disaster.

  13. 17


    In the world which I inhabit (“realville”), a new law which is enacted under false pretenses is sent back to the legislature to be corrected. If the law says that the Commerce Clause justifies the individual mandate, then that is what the law says. If the Commerce Clause cannot be used for this purpose, then it is the task of the Court to send the law back to the legislature to be re-written.
    For the Court to re-write the law, the Court must become the Legislature. Under our system of divided powers, such a usurpation cannot stand. Legislatures write laws.
    It is the same as a criminal conviction which is overturned. The Court sends such overturned cases back to the jurisdiction which originated the case, and tells them to do it over.
    The Court has no power to re-write signed law. Nowhere in history to I find such a power, and no examples have ever come to my attention. The whole thing is bogus from beginning to end.
    It is time to either replace Chief Justice Roberts or candidly admit that the Constitution is no longer valid.

  14. 18


    John Roberts would do well to study history. His own vanity will write his epitath. History tell us that a revered man by the name of Benidict Arnold sold out his supporters and his nation for his vanity. The result was the hatred of the people who he sold out and the distain and contempt of the people he sought to impress. History has now repeated itself.

    Mr Roberts, you now must live with the consequences of your vote. In the end YOU branded the scarlet letter on your forehead. “We the People” cannot protect you from the consequences of your own actions.

  15. 19



    @Alec Rawls: He never revisits what the proper interpretation of the commerce and tax clauses should be but simply takes the post-New-Deal interpretations as established. THOSE decisions were overtly political, driven by the Court packing threat, and yet Roberts is not even content just to take these precedents as given, but he goes on to substantially expand the tax power.

    To the first sentence, Alec, Roberts (writing both for himself and also as the Court) addresses both the Commerce Clause and taxation (i.e. Anti-Injunction Act, direct and capitation taxes, apportioning) quite thoroughly in multiple pages. Perhaps you can point out where in the brief he was insufficient for a bit more enlightenment for me?

    To the second sentence, INRE “substantially expand the tax power”. No, the majority opinion did not do that. They are utilizing existing taxation authority for behavioral change, just as they have been doing for some time. i.e.

    1: Taxes imposed on an affirmative action to deter that action (cigarettes, liquor)

    2: Negative taxation (tax credits/incentives/rebates) to encourage an action (purchase of homes, cars, energy upgrades, etc)

    What is a more unusual implementation is that now they are imposing a tax to encourage an affirmative action (to purchase health insurance). While you may argue this isn’t within their authority, there is nothing in their constitutional powers of taxation that states any particular combo is required to be constitutional for tax policies, specifically designed to effect societal behavioral change.

    It’s an ugly truth, fer sure… but it remains true nonetheless that the Constitution only dictates that tax burdens cannot be so onerous as to destroy. The individual mandate, as a stand alone issue, does not rise to that burden.

    But I agree with the dissenting judges that the entire law’s context, adding in the tax burdens of small business and the incurred debt due to the expansion of government healthcare (Medicaid), *does* rise to that burden.

    The problem is SCOTUS can only address the merits of the argument before them… i.e. the four elements of that particular lawsuit. They cannot widen it to a wisdom of the entire law as the basis for their ruling. And while the dissenting judges did point out the slippery slope the majority ruling could lead to, it’s not founding the basis of their particular arguments on the elements before them. It was just a side observation, and an astute one.

    It might be interesting to see if, in the future, that so onerous as to destroy doesn’t manifest itself in a challenge to the entire law – all tax policies combined – as unconstitutional taxation for the burden it causes. Unfortunately that cannot happen until the taxation actually starts…. meaning we’ll have to experience economic destruction by the taxes before any lawsuit can be filed. Bummer…

  16. 20



    Alec: He helped the “political branches” pull a bait-and-switch on the American people, establishing that it is a-okay for Congress and the president to lie to the American people about what they are doing,…

    Actually, Alec, another way of looking at it is that he blatantly and unapologetically exposed to the American public that the WH and Congress were lying their tails off… whether it be out of Constitutional ignorance or design.

    The opinion by Roberts, and the Court both, as written were a merciless slap in the face to both Obama and Congress. It pointed out they were completely wrong in how they thought they could implement it, and could only implemented by the way they said it wasn’t being done. Plus that, he had to pull citations from 180 years and a century ago to point out that the Court had the responsibility not to knock it down because of their lies and stupidity, but to address it’s authority under the powers they did possess.

    Frankly, the entire opinion is pure embarrassment for Obama, Pelosi and Reid… adeptly pointing in a big way that they are constitutionally dumber than dirt.

  17. 21

    Alec Rawls

    “The Constitution only dictates that tax burdens cannot be so onerous as to destroy.” That’s the post-New-Deal interpretation of the tax clause.

    Here we have a fundamentally transformative policy: government take-over of a full seventh of the U.S. economy, and instead of revisiting overtly politically influenced and clearly wrong New Deal interpretations, Roberts not only embraces them untouched but expands them.

    Harley asks what is missing from Roberts’s opinion. How about a discussion of where the New Deal precedents are wrong? He may have been thorough in terms of precedent, but he doesn’t question precedent. In terms of law, this can be seen as just a lost opportunity to revisit interpretations that took a wrecking ball to our system of limited enumerated powers. That would be bad enough. But now the Democrats are trying to drive 1/7th of the economy through that breached wall in one fell swoop and what does Roberts’ do? He kicks the last few blocks of rubble out of the way and waves the Vandals through, saying: “If there is any possible way that I can stretch existing precedents to allow this breach then I must.”

    Even then he is two faced. What good does it do for him to expose the fundamental dishonesty of Obama and the Democrats in Congress if he is going to rubber stamp it all? He dismisses the tax-penalty distinction as mere language then pretends he is avoiding politics even though the tax-penalty distinction was a key part of the political negotiation that got the bill passed.

    More fundamentally, he should NOT be looking for any possible way to stretch existing precedents to allow gigantic new government actions. Again, his duty is to the Constitution. He has a responsibility to look at the whole situation fresh and give stare decisis only its due weight. Precedents do not rewrite the Constitution. They need to be given some deference even when they are wrong because of the importance of stability in the legal system but they are not the Constitution. Only the Constitution is the Constitution, but that is not how Roberts’ played it. He treated precedent as the Constitution. Every past perversion of the Constitution no matter how overt takes precedence in his mind over the Constitution. He’s not acting like a chief justice, he’s acting like a lower court judge, a really bad and arrogant and presumptuous lower court judge.

    The guy would make a good apparatchik or a paymaster for a Mafia boss. He doesn’t question the way things are or how they came about. He just does whatever he has to do to grease the wheels, paying no heed to who or what is thrown under. Yeah, I’m coming to think of him as approximately equal to Miami’s face-eating zombie cannibal. Take away his bath salts and throw him in a cage!

  18. 22

    Dan Crader

    What is Fraud?

    Passing it as a penalty and arguing it’s a tax, qualify? Finding it’s a tax and letting it stand after being passed as a penalty, constitutes fraud. Roberts supports fraud, simple. I would also think, illegal, but I’m not on the court.

  19. 23

    B. Johnson

    Consider the following disturbing information concerning activist justices, including Roberts, supporting Obamacare. Regardless that Justice Roberts referenced the Gibbons v. Ogden case in the Obamacare opinion, he seemingly ignored two key statements in the Gibbons opinion which clearly indicate, imo, that Congress has no constitutional authority to make legislation regulating public healthcare.

    In fact, note that the first statement below clarifies, in a single sentence, that not only is public healthcare a state power issue, sovereign state powers to address public healthcare protected by the 10th Amendment, but also that Congress has no constitutional authority to address intrastate commerce issues; FDR’s activist justices got the Commerce Clause wrong in Wickard v. Filburn.

    “State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress (emphases added).”  —Gibbons v. Ogden, 1824.

    “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Chief Justice Marshall, Gibbons v. Ogden, 1824.

    In other words, Congress cannot make laws to lay taxes or establish penalties in the name of intrastate public healthcare any more than it can make laws regulating 1st Amendment protected religious expression and freedom of press.

    Here’s two more excerpts from USSC case opinions which likewise indicate that Congress has no constitutional authority to make laws regulating intrastate healthcare. Note that Justice Barbour referenced the above excerpt from Gibbons in New York v. Miln, expanding it as follows.

    “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state (emphasis added) and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln, 1837.

    And before Constitution-ignoring FDR nuked the Supreme Court with activist justices, Constitution-respecting justices had again emphasized that Congress has no business sticking its big nose into intrastate medical practice.

    “Direct control of medical practice in the states is obviously (emphasis added) beyond the power of Congress.” –Linder v. United States, 1925.

    Sadly, until the states decide to delegate to Congress via constitutional amendment the specific power to tax and spend in the name of public healthcare, the federal government’s unconstitutional power grab concerning Obamacare is stalling the states from establishing their own healthcare programs, evidenced by Massachusetts’ RomneyCare.  Article V of the Constitution is the best kept secret of the unconstitutionally big federal government imo.

  20. 24



    Mata: “The Constitution only dictates that tax burdens cannot be so onerous as to destroy.”

    Alex: That’s the post-New-Deal interpretation of the tax clause.

    Again, Alec, on my personal emotional level, I don’t disagree one bit. But in the legal world, more recent precedents (when available) trump the older ones. While it’s not unheard of for a more recent SCOTUS to overturn previous opinions, it’s also not very common place. In the case of your desired discussion of New Deal precedents, it conflicts with your other desire that the SCOTUS remain above the political fray. A pure legal aspect cannot cast moral judgment on prior opinions without walking away looking like nothing more than a political decision.

    What good does it do for him to expose the fundamental dishonesty of Obama and the Democrats in Congress if he is going to rubber stamp it all?

    Technically, he didn’t “rubber stamp” it. What he did was point out that that despite their utter stupidity and lies, it did fall within their taxation powers…. and that the role of the Court is to consider whether the intent of the legislation falls within their authority. Not whether the described authority was correct. But right after saying that, he also went into the lecture that even those taxation powers were limited. There were plenty of SCOTUS shots over the WH and Congressional bow in that document that I noticed. This wasn’t a glowing endorsement in any way. Small consolation for all of us, I know. But factual nonetheless.

    More fundamentally, he should NOT be looking for any possible way to stretch existing precedents to allow gigantic new government actions. Again, his duty is to the Constitution.

    Alec, it is the SCOTUS robed ones’ constitutional duties to examine *all* precedents that are related to Congressional powers and the argument before them. To not do so is political and a dereliction of duty itself. In this case, those of us unhappy with the opinion (and I’m not a happy camper, if not understanding of the cited precedents…) would prefer he ignored the longstanding role of the Court for the two interpretations rule. (i.e., I’d loved to have remained blissfully ignorant of that one) But what if the shoe were on the other foot, and that precedent that he chose to ignore resulted in the opposite? It’s just a matter of personal perspective and desires for an outcome. However the SCOTUS cannot function that way. They either pay attention to Constitutional rulings that are relevant, or they don’t. Sometimes it works for the best. Other times not.

    And as I pointed out, this isn’t a gigantic new government action. It’s just another version of their already constitutionally granted authority, albeit a switch on the norm.

    Here’s an interesting thing for people to ponder. SCOTUS judges do not comment on their opinions in the public forum. In this case, there is going to be a lot of rotten eggs and tomatoes thrown at the Chief Justice, and he is not in the privileged position to be able to respond. Each justice reviewed, researched and spoke their respective minds… and it’s not surprising that it was very mixed on just about everything. Despite that, they ruled as they saw fit within their Constitutional duties, and will now remain silent while the accusations and fury flies in the media. It’s definitely not a job for the feint of heart.

    Despite your, or my own, disgruntled ‘tude towards the result, it is what it is. And our system is set up that we either respect the rule of law, or we don’t. Win some, and lose some. Been that way since day one. This is just another one. I don’t see this political subterfuge that so many are claiming, but again… that’s another opinion. All I can say is it’s now up to the constituents to replace those writing piss poor legislation, designed to effect societal behavior. That is not the job of the High Court.

  21. 25

    Alec Rawls

    MataHarley says that my desire to see the Court examine past activist precedents for compliance with the Constitution “conflicts with [my] other desire that the SCOTUS remain above the political fray.”

    Maybe that is where we are disagreeing. The Court’s job is always and everywhere to adhere to the Constitution and precedent is not the Constitution. Stare decisis warrants a certain amount of weight given the importance of a stable system of law, but that weight must give way whenever the error of existing precedent violates clear constitutional meaning in any highly consequential way.

    Lower court judges are supposed to adhere strictly to precedent and only impose unprecedented constitutional requirements when a case raises previously unsettled questions of the highest importance, but a part of the job of Justices is to review and correct precedent. What makes it needed is usually the failure of earlier Courts to themselves not be political, but to undo such politicization is not itself political. It is simply applying the standards of adherence to the Constitution that the Court is always supposed to follow, heedless of political pressure or political implications.

  22. 26



    Alec: Maybe that is where we are disagreeing. The Court’s job is always and everywhere to adhere to the Constitution and precedent is not the Constitution.

    Forget the disagreement between you and I, despite we actually both abhor the opinion, Alec. What’s more important is that the nine justices who ruled on the case also disagreed in various areas, but a majority opinion was still reached. Like it or not, it’s what we have. Per our system, the only place to take it from here is right back to Congress, who begat this mess to begin with. We’ll have to trust in the electorate to do just that.

  23. 27

    Alec Rawls

    “the only place to take it from here is right back to Congress”

    If Congress and the electorate can get the job done, those parts of our system will actually be strengthened by this fiasco. It is just horrible to see the judicial branch falling back over to the dark side.

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