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Interesting Roberts commentary

Discussion in 'Politics, Elections & Legislation' started by wireguy, Jun 29, 2012.

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  1. wireguy

    wireguy TS Member

    Jan 29, 1998


    Democracy in America
    American politics

    Obamacare and the Supreme Court
    John Roberts's art of war

    Jun 28th 2012, 21:01 by W.W. | IOWA CITY

    AS PETER SUDERMAN of Reason put it, "Some coup". The individual mandate passes constitutional muster after all. Crisis of legitimacy averted! Akhil Reed Amar's life has not been a fraud!

    However, according to the majority decision by John Roberts, the Supreme Court's conservative chief justice, the mandate cannot be justified on commerce-clause grounds. Indeed, Mr Roberts wholly affirms the argument that the commerce clause cannot regulate economic INACTIVITY. (emphasis mine - wireguy) From the syllabus of the decision:

    Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

    This amounts to a sizable, if weird victory for the conservative and libertarian legal theorists who vigorously pushed this line of reasoning. However, according to the majority, the penalty meant to give the mandate teeth does fall under Congress's undisputed power to tax. "t is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity", Mr Roberts writes. Thus the court manages to defer to Congress whilst explicitly contradicting an expansive reading of Congress's power to regulate economic activity under the commerce clause. And so the needle is threaded.

    Had Mr Roberts sided wholly with his conservative brethren on the court, the decision would have been absolutely devastating to liberal ambitions. Obamacare and the longstanding liberal interpretation of the commerce clause would have been left in shambles. Why didn't Mr Roberts pull the trigger? Because he's conservative. And he's very smart.

    Though I disagree with his jurisprudential judgment, I think Jonathan Chait has the big picture's contours mostly right:

    The fearful part is that five justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

    But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

    But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.

    I would phrase this rather differently. Mr Roberts genuinely thinks continuity, stability, public approval, and a posture of deference to the legislature are crucial to the healthy functioning of the judicial branch. The members of the court have more room to move, more freedom to interpret the constitution by their independent lights, when they are not the subject of an angry, divisive public debate that loudly calls into question the independence and legitimacy of their institution. Mr Roberts observed the livid reaction to Citizens United, as well as the liberal freak-out over the mere possibility of a ruling striking down Obamacare, and determined that prudent custodianship of the court called for a light, conciliatory touch. Indeed, my hunch (and none shall doubt my amazing intuition!) is that Mr Roberts may well have chosen to join his conservative colleagues had the court not lost so much public goodwill following the Citizens United decision.

    Mr Chait's thought that Mr Roberts sought to avoid "a world in which he and his colleagues are little more than Senators with lifetime appointments" is more than a little ironic, given that in his decision Mr Roberts rather straightforwardly legislated from the bench by offering and affirming a construction of Obamacare which the administration itself rejected. That is to say, Mr Roberts acted exactly like a senator with a lifetime appointment: he elected to advance his agenda in a manner available only to legislators immune from short-term electoral pressure.

    By now I think we all realise that "judicial activism" really means "a decision I don't like" and that "crisis of legitimacy" really means "a series of decisions I don't like". Thus, all that was required to avert a looming "crisis of legitimacy" was to uphold Obamacare, for whatever reason, and Mr Roberts seemed to have known it. Mr Chait and his partisan allies clearly dislike the way in which Mr Roberts avoided the "crisis" of their collective tantrum, but the great relief that has now washed over them will be enough to keep them from attacking with full force the "bizarre and implausibly narrow reading" of the commerce clause which Mr Roberts just embedded more firmly in constitutional law.

    Some coup. Sun Tzu style.
  2. wireguy

    wireguy TS Member

    Jan 29, 1998
    Posted by Erick Erickson (Diary)

    Friday, June 29th at 4:46AM EDT

    In the past twenty-four hours I have gotten a lot of heat from friends over my take on what John Roberts did. What’s done is done and I really could not get all worked up about it because Obamacare in the Courts has been such a distraction. Yet again the GOP expected a court to save them from something they did not like.

    The GOP has largely turned its nose up at the tea party, which is its salvation. The tea party movement provided the GOP with the energy, man power, and money to take back the House in 2010 and come close in the Senate. For that, the GOP has routinely given the tea party the middle finger and, instead of fighting for repeal of Obamacare, excused itself while the Supreme Court did the heavy lifting.

    John Roberts, the man who gave us the Citizens United case has now, with a laughably inane ruling, told us we have to fight politically. The millions of people who joined the tea party in 2009 only to go back to their jobs and families after the 2010 election are now awake.

    In waking, what they are seeing is a government claiming that food stamps will make you look amazing and that encourages people to party with food stamps. They are seeing a corrupt tourism program. They are seeing tax cheats getting billions from Barack Obama. They are seeing high unemployment, the United States Attorney General held in contempt of congress, the GOP cave on fiscal issues, and the Supreme Court deciding something the vast majority of Americans hate is constitutional.

    And they are seeing that, just like in 2010, they are the only ones who can stop Barack Obama and the Democrats. The GOP is nothing without the tea party. Tea Party activists are awake again. And thanks to John Roberts they are mad as hell.

    Mitt Romney raised more than $2 million between the time John Roberts sold liberty down the river and sunset. Barack Obama’s campaign would not comment. And thanks to John Roberts, the Democrats who want us all to know how popular individual portions of Obamacare are, will now have to campaign on “vote for us to save the biggest tax increase in American history that 60% of Americans want repealed.”

    A giant woke in 2009. It went back to sleep thinking it had saved the republic in 2010. It’s awake now and I don’t think it is going back to sleep.
  3. wireguy

    wireguy TS Member

    Jan 29, 1998
    Who really won at SCOTUS this week?
    June 29, 2012 By Michael Levin

    As pundits and pollsters weigh the historic Supreme Court decisions this week on immigrants and healthcare, it’s important to maintain sight of the real winner.

    It’s not Obama and it’s not Romney.

    It’s the rule of law. You may not like the decisions the Supreme Court reached, and you may spin each case to match your political leanings. But the thing that can’t, and needn’t, be spun is that the system worked.

    The high court’s role isn’t to determine the likeability or the practicality of bills that Congress passes and the President signs into law or that the states themselves create. The Supreme duty is to determine the constitutionality of those laws, without fear or favor, without recourse to political considerations, and without a nod to the politicians who put the Justices on the Court. And that’s just what they did.

    In political terms, the two decisions gave victories and losses to both sides. Here’s how:

    The Court struck down certain provisions of Arizona’s law regarding illegal immigrants but upheld the key ingredient, permitting police to ask people stopped for other reasons for documentation indicating that they are in the country legally. That gave conservatives reason to rejoice and gave liberals a rallying point and a new reason to fundraise.

    Then the Court upheld the healthcare law, declaring that the fine the uninsured must be as a “tax”, and Congress does have the right to tax. Thus giving liberals a reason to rejoice and giving conservatives a new reason to fundraise.

    The beauty of the Supreme Court is that the lifetime appointment of the Justices, guaranteed by the Constitution, allows its members to decide cases as they see fit. This permitted the Chief Justice, John Roberts, to surprise his Republican admirers and provide the deciding vote in favor of ObamaCare. You may not like ObamaCare. I don’t, and from the language of Justice Roberts’ decision, neither does he. But in his mind, the fine for people who don’t buy insurance passes muster up a tax, so that’s how he voted.

    The common thinking is that on ObamaCare, the Democrats got their laws and the Republicans got their cause. Mitt Romney’s biggest problem is that nobody likes him. Maybe the affirmation of ObamaCare will be the thing that galvanizes the Republican base. Since the Supreme Court let the law stand, Republicans will have to overturn it the old-fashioned way—by electing a President and a Congress that will kick the law to the curb.

    I hope they do. It’s not just that ObamaCare is the biggest tax increase in American history—forcing people to buy insurance is un-American, even if Chief Justice Roberts says it’s a legitimate practice. It is forcing insurers to drop the preexisting illness requirement, like forcing home insurers to insure houses that have already caught fire.

    Some critics actually see an ever-darker motive here: if insurers go broke, as a result of these laws, the government can nationalize the industry. Why not? They’ve already bought carmakers and banks. Why not CIGNA and Blue Cross?

    So if this doesn’t drag the Republican base to the voting booth in November, nothing will.

    Back to Arizona. When you read the Court’s decision, it just plain makes sense (unless you’re here illegally or support those who are). You can’t demand that people carry papers. But if a cop legitimately stops someone, she can determine whether the person is violating laws regarding drugs, guns, and other matters. So

    why can’t the officer determine whether the person is in violation of immigration law?

    If President Obama hadn’t been so opposed to the Federal Government enforcing immigration law, Arizona would never have had to pick up the slack in the first place.

    Again, you may not like the outcome of the Supreme Court’s rulings on the Arizona law. Maybe you think they should have upheld all the provisions; maybe you think they should have struck down every aspect. But the process worked. As with ObamaCare, the Constitution was consulted and prevailed.

    The two decisions represent a win and a loss for both sides. But the good news is that the real winner is the rule of law. And with the 4th of July nigh upon us, that’s something to celebrate.

    (New York Times best selling author Michael Levin runs www.BusinessGhost.com, and his newest book is Brand Yourself Rich.)
  4. Recoil Sissy

    Recoil Sissy Well-Known Member

    Jan 29, 1998

    The first piece essentially tells the story of a guy on death row sentenced to be 'hung by the neck until dead' on Friday. With the help of his attorney, Mr. Death Row appeals the sentence claiming cruel and unusual punishment.

    "Good news", says his lawyer on Thursday. "Justice Roberts joined the libs in a majority decision. They agree hanging is unconstitutional. OTOH, they all agree firing squads pass Constitutional muster so you'll get a bullet in the brain tomorrow. Its ok though because in the long run..."


    Between the three "interesting" commentaries you posted, the only statement that amounts to a d@mn follows. "... on ObamaCare, the Democrats got their laws..."

    No amount of spin changes the facts. obummercare was passed without a single GOP vote. It passed Constitutional muster yesterday. The socialists won.

    For anyone still confused, Patrick Gaspard (Executive Director of the Democratic National Committee) summed it up in two phrases yesterday.

    "It's constitutional. B!tches." and "Take that motherf**kers."

  5. wireguy

    wireguy TS Member

    Jan 29, 1998
    If there is no long run, and I agree 100% with you on that point, it doesn't matter. This was really a pimple on a dead rotting corpse. Fixing the pimple isn't going to bring the patient back to life. If Obamacare had been found unconstitutional we would all be celebrating, but that wouldn't change anything either. The patient is dead. When the US dollar is no longer the world reserve currency, and that is in the works, everything else is going to become academic.
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