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Taking Apart Roberts' Awful Decision

By Quin Hillyer, American Spectator - July 6, 2012

Chief Justice John Roberts' decision on the ObamaCare case was, if anything, even worse than most conservative critics have said. At CFIF, I consider it point by point. Although I didn't use these terms, what I show is that Roberts mischaracterized precedents, tortured logic, deliberately skated around constitutional restrictions on the taxing power, redefined words, unliterally rewrote the statute in two places, conflated tax breaks with an unprecedented beast amounting to a tax on inactivity, blatantly politicized the court in the name of avoiding a politicized image, and, as an aside, elevated a cliched aphorism to quasi-precedential status. In some places, he was grossly intellectually dishonest; in others, he was intellectually incoherent and/or philosophically hollow. If indeed he bowed to pressure from Barack Obama and the media, then he was pathetically craven; in finding a taxing power that not a single other court had found, he was stupendously arrogant. The decision was hamhandedly manipulative, logically insupportable, and deeply cynicial -- and, of course, was, throughout the taxing part, full of utter sophistry. 

Maybe Roberts was hoping that, with regard to the East Coast establishment, he will be seen like Confederate General Johnston was outside Atlanta, when he kept retreating rather than engaging Gen. Sherman in battle. A local newspaper editor, enthralled, wrote the Johnston's reputation had "grown with every backward step."

In terms of constitutional law and effective limits on federal action, by acknowledging limits on the Commerce Clause while expanding them on the taxing power he was like the American officer in Vietnam who said he had to "destroy the village in order to save it." This decision was the judicial equivalent of a justice showing evidence of suffering from Stockholm Syndrome with regard to the coastal "elites."

Call Roberts the Bart Stupak of the Supreme Court. He capitulation was just that bad.

Again, please do read my CFIF piece. Here's one paragraph, from a much larger article:

The maxim to choose an interpretation of a law that would accept the law as constitutional, over an alternative interpretation that doesn't, is meant to apply in cases where the two interpretations are equally or near-equally reasonable. Here, though, as we have seen, Roberts had to strain and stretch and twist and skate and float and use misdirection in order to somehow, some way, pretend to impose a plausible interpretation on an assertion that is not even in the same logical solar system as interpretations that are "straightforward" and "natural."

And yes, I do cite chapter and verse (figuratively speaking) to back up these assertions and conclusions.

Wait a minute... the Roberts decision? Correct me if I'm wrong but is Sotomayor, Kagan, Ginsburg etc on the SCOTUS also? Why is it always about the Republicans here lately? Is this publican turning into a rag for the DNC? Is Howard Dean calling the shots at TAS these days? Each/every one of this critical editorials is a shot to the heart of the Republican chances of winning on 11/6/12. Is there nothing to write about concerning Democrats these days? If I'm correct, Braitbart just ran a story about Jesse Jackson Jr 's disappearance from politics over supposedly health reasons and more likely his connections to Corruption Rod in Chicago, so why is not Jesse Sr's and Al Sharton involvement in Florida's Zimmermann race riots being now questioned and written about? What new with Reid and his labor union connections from Nevada? What about the Sex-crazed Poodle Al Gore, isn't there some possible storyline there maybe??????????????

Since I'm advising people to resist (meaning don't buy health insurance if they don't want to), I'm curious about these comments:

"Fourth, Roberts makes the extraordinary claim that "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS" "“ and that the IRS is forbidden from using criminal prosecution to penalize those who refuse the mandate. The problem here is that the IRS can withhold income tax refunds from those who refuse to pay the penalty, and it can choose to apply ordinary income taxes to the penalty first, before crediting the citizen with having paid his due income taxes "“ and then the IRS can impose a penalty for failing to pay those taxes, and then prosecute or garnish wages for failing to pay that penalty.

I don't quite understand this. How can IRS tax a "tax"? Or, how can IRS tax a "penalty"? From what I can see, the ONLY penalty is that they can take away a REFUND, nothing else. Therefore, I advise everyone to owe just a little bit of tax each year on both their federal and state returns.

Since I'm advising people to resist (meaning don't buy health insurance if they don't want to), I'm curious about these comments:

"Fourth, Roberts makes the extraordinary claim that "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS" "“ and that the IRS is forbidden from using criminal prosecution to penalize those who refuse the mandate. The problem here is that the IRS can withhold income tax refunds from those who refuse to pay the penalty, and it can choose to apply ordinary income taxes to the penalty first, before crediting the citizen with having paid his due income taxes "“ and then the IRS can impose a penalty for failing to pay those taxes, and then prosecute or garnish wages for failing to pay that penalty.

I don't quite understand this. How can IRS tax a "tax"? Or, how can IRS tax a "penalty"? From what I can see, the ONLY penalty is that they can take away a REFUND, nothing else. Therefore, I advise everyone to owe just a little bit of tax each year on both their federal and state returns.

Can the editors delete this second post. Thanks....

Choosing an interpretation of a law that would accept the law as constitutional can only occur if the law is the only recourse to address a public policy concern. Since the concern is access to health care, health care prices and insurance restrictions, there are other legislative actions that can address the problem. Start with insurance portability and then work down to deregulation of mandated coverage.

But if there is no other recourse than to find an unconstitutional law constitutional, then the Court must stand down and let the amendment process take over. Roberts did the equivalent of the 16th Amendment's redefinition of direct taxation on income -- he called an unconstitutional direct tax (the penalty) a legitimate tax power of congress.

What do you think Mitt Romney's opinion is of the Roberts opinion, Quin?

Wouldn't knowing that tell us all we need to know about him?

It surely is separating the conservatives from the apparatchiks among the punditocracy.

You obviously prefer this: '.......Senate Minority Leader Mitch McConnell blasted the Obama administration for supporting the Disclose Act in an Op-Ed today, calling it "an attempt to identify and punish political enemies, or at the very least, intimidate others from participating in the process."...the Kentucky."....The DISCLOSE Act "” Democracy is Strengthened by Casting Light on Spending in Elections "” would require corporations, unions, and advocacy groups to reveal their roles in political ads or mailings in the closing months of a campaign.McConnell said that the Disclose Act is billed as reform but is instead an "attempt to identify and punish political enemies, or at the very least, intimidate others from participating in the process "” an effort that's already underway." McConnell wrote: "The Obama administration has tried to single out its critics through federal agencies such as the IRS and the Federal Communications Commission, and even through a proposed executive order aimed at denying government contracts to opponents. The president has used selective disclosure not as a tool of good government, in other words, but as a political weapon.".... It is the Democrats' attempt to get around the court by compelling certain targeted groups to disclose the names of their donors, while excluding others, such as unions, from doing the same," .......'

Or maybe you prefer this instead: '.....Today, Jay Carney fell into the unfortunate trap of attempting to explain President Obama's view of Obamacare. If it's a tax, President Obama's signature plan is legal, but violates Obama's campaign pledge not to raise taxes on those earning less than $250,000 in a major way; if it's a mandate, it's illegal under the Supreme Court ruling. But the Obama administration wants it both ways: it's a tax for purposes of legality, but a mandate for purposes of politics. Here's how Carney expressed that ridiculous perspective:But if I could just add as a matter of policy, it is simply a fallacy to say that this is a broad-based tax. That's not what the opinion stated that was authored by the Chief Justice. The Affordable Care Act is constitutional under Congress's taxing authority, but this is clearly a penalty that affects less than 1 percent of the American population.This is asinine. Only taxes are authorized under the taxing authority of Congress. Mandates aren't. The power to declare war isn't. Taxing authority gives authority to levy taxes. Of course. But Obama's now stuck between a rock and a hard place. It took Mitt Romney a while to recognize the political opportunity in this, but he finally did yesterday when he labeled Obamacare a tax. Now Obama will be held to one standard or another. Either way, he loses......'

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