Someone sent me this screen shot from yesterday’s coverage and asked how I was able to join Chief Justice John Roberts in discussing the health care ruling. Frankly, I thought arriving at the studio in his robe was a bit much but I appreciate his participation in the coverage. It is, however, a bit unfair to reply to analysis by your co-panelist with “well, that is not what I meant.” I think I have a slightly better handle on his own intentions, fears, and feelings after doing this type of work for a couple decades. Indeed, I have been known to go into a deep trance on television and channel the thoughts of James Madison (as well as Thomas Paine’s bartender).
It was a busy day Thursday. I began in MSNBC then went to Fox (Special Report) and then finished with Piers Morgan at CNN with stops in between for NPR segments. It was fun to have exchanges with other professors and lawyers on the meaning of the case. While we disagree on the meaning and implications, I found the level of analysis for the various experts to be quite high and insightful. And, of course, I wish to extend a special thanks to my pundit pal, JR.
Ralph,
Unfortunately your argument is not relevant to the actual opinion. The opinion explicitly bases the tax rationale on Article 1, clause 8, which provides “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” The Constitution does not limit the federal government’s ability to tax to solely laying and collecting an income tax.
MikeA,
“That’s my sense of it, anyway. Ask ten more lawyers and you’ll get ten different answers.”
Such humility is rare and by me much appreciated.
What about dicta which someone wrote about here recently? Even so far as to describing the subspecies, was the scrift forumlated.
James Madison believed and wrote in the Federalist Paper #84
that “A Bill of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous” because “They would contain various exceptions to powers not granted;” and “would afford a colorable pretext to claim more than were granted;” and “would furnish to men disposed to usurp. A plausible pretense for claiming that power.”
Federalist Paper # 84
He also wrote:
“Here in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations”
Federalist Paper #84
How does this square with the Supreme Court decision?
John Roberts, like a lot of Supreme Court justices, pretends that he “follows” the law, or “applies” the law. But the reality is that these judges just make junk up out of the air to justify taking certain positions that they want to take in the first place. The reality that most people don’t know is that one of these judges tells his clerks, “Look, I want you to find a way to favor this position……. (and then the justice tells the clerks the conclusion he wants to reach).”
Then, the clerks go to work, get creative, and come up with novel solutions to create entirely new law. Of course, in the process, the law is stretched beyond recognition, and grand leaps from logic and common sense are done in the process. But the judges don’t care so much about that. Just so they reach the destination they want to reach in the end. The results read like mental masturbation, and any attempts to interpret their literary masturbation go nowhere because you can’t make sense out of nonsense. It just is what it is and you deal with it or move on. Scalia does exactly the same thing. And so does Ruth Bader Ginsberg. As do many, many others judges throughout the United States.
Turning to John Roberts’s decision, you have prose which reads like a typical literary masturbation attempting to justify an unjustifiable position. But how did this process actually play out? Roberts told his clerks, “Find a way to let the ACA stand.” The clerks went to work. They find nothing in the law to support that position and tell Roberts so. Roberts tells them, “Go back and find something….. just invent some pretext….. anything will do….. Come on now, what did you go to the best law schools in the land to do?”
And so one of the clerks finally returns to Roberts with a new twist on the 16th Amendment, which actually states that “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
I have an idea, this bright clerk declares. “Let’s make the ACA stand by concluding that it’s really just a tax, just like many of Obama’s political opponents have said.”
“Hmmmm,” Roberts says. “Sounds good in theory, but what about the particulars of the ACA?” “The law allows the government to tax INCOME from any source, but in the ACA we’d be telling the American people that they could be taxed for NOT buying something. What would be the pretext for this brand new concept? Taxing for not buying something is different from taxing sources of income. That’s never been done before.”
“But you don’t NEED a pretext, John. You can say anything you want and make it stick,” the clerk reminds Roberts.
“I suppose so. But is this really the best you can come up with?” Roberts says to his clerks.
They look at each other blankly, shrug their shoulders, and then solemnly gaze back at Robert, nodding yes.
And thus a new law is born.
Please define and describe the difference between the “law of the case” and “precedent,” and which applies in this case. The
linkage of a government benefit with a means i.e. tax to pay for it can come back to bite us all in the a** in a very big way in the future. As I understand it precedent binds the SCOTUS on the facts of the case in future cases raising the same or similar issues and facts?
S.D. Jeffries:
You raise a good question. Every law challenged in court is presumed to be constitutional. In addition, the court is obligated to uphold a statute’s constitutionality if it can do so under the law. Sometimes that means that the court will determine that a statute fails the test under one provision of the Constitution, but is sustainable under another. That is what happened in this case. It is controversial, however, because Justice Roberts’ analysis under the Taxing and Spending Clause appears stilted and simplistic, as though he were grasping at straws to preserve what’s left of the Court’s tattered reputation without conceding any ground on the limits of the Commerce Clause. That’s my sense of it, anyway. Ask ten more lawyers and you’ll get ten different answers.
S. D. Jeffries
Read my comment above
I have always believed that the SCOTUS Was only able to rule on what was written in the law and not give their opinion of what the law should be. If they believe that the mandate is a tax then they should have thrown it out and stated that is what congress should have called it and wrote it that way.
Amazing the propaganda soon burys the facts.
Even the WH short list can be questioned as to facts.
Wonder how many millions were spent on preparation for this decision—-not to mention those spent on trying to influence it.
Democracy is so uncertain. Onward corporativism, say they.
How to go from beginning junior senator to Prez in one easy roll. The talents the man must have. Or not have? Is it becoming a charm contest.
I just wish somebody would strap Romney to a car roof and drive him back to Mexico, and feed him to the wolves there.
They are an endangered species also.
I have a question. Not being a lawyer I’m having trouble determining exactly what was done by redefining (something) as a tax. I realize the redefinition was done to avoid authorizing the commerce clause to be used by the government to force an entity into commerce against its will, but what was redefined?
Did Roberts redefine the penalty for refusing to procure health insurance as a tax? Or did his opinion define the mandate as a tax? With Republicans running around with their hair on fire screeching that the law is the largest tax increase in history, it’s difficult to tell what the ruling actually defined as a tax.
The right wing is going crazy, from Wonkette
: ”
The loyal opposition and our fellow Merkins on the savage right have been having a very hard 24 hours, what with trying to come to terms with how they were totally raped in their bottoms by a man, a Justice, a CHIEF JUSTICE they thought was their friend, but who it turns out is the kind of communist socialist maoist Kenyan anti-colonial who would allow the terrible socialist communism that is private insurance companies continuing to hold sway over the health care of the nation.
First, they thought they knew the answer and it was that Supreme Court Chief Justice John Roberts had been extorted by President Idi Amin, and that arrests would be coming at any moment. Now, though, they’ve got a better explanation: John Roberts is on anti-seizure medications for epilepsy, and they are making him tarded.
Thanks to ThinkProgress, we can offer you the audio from one Great American Hero, Mr. Michael Savage, as he explains the whole tragic mess:
TP even transcribed it! Thanks TP!
Micael Savage “Let’s talk about Roberts. I’m going to tell you something that you’re not going to hear anywhere else, that you must pay attention to. It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.”
We are very worried about the state of John Roberts’ health, you guys, and how it is making him so very stupid. If only there were some kind of program that could help him get the kind of care that all Americans deserve.”
As always, Wonkette gets to the heart of the matter….Roberts made this decision because epilepsy is making him stupid. That has to be the reason!
The Rude Pundit weighs in, with proper editing for the JT blawg:
“Between lying about the size of the “tax increase” (which is mostly the penalty that will be paid by the roughly 4-6% of idiots who don’t buy health insurance) and spewing more bu11sh*t per hour than most bulls actually defecate in a month, Rush Limbaugh went all apocalyptic: “Between the Arizona and Obamacare decisions, America is a very different concept than it was just a week ago… The Constitution’s under assault, and so is every individual living here under assault.” Oh, Mary, calm down.
Here’s what’s gonna happen with the Affordable Care Act: Nothing other than what was intended. The law will continue to take effect. People will start to realize, “Holy s***, this isn’t the end of days,” and they’ll get those weird moles checked, the ones they got from standing outdoors in their teabagger costumes without sunscreen for all those protests. Obama will be reelected. If Republicans keep the House, they’ll try to defund it. They’ll try to repeal it. It won’t happen. And by the end of 2014, when millions of people are actually helped, it won’t even be an issue anymore.
Blind optimism? No. Just a belief that most Americans are gonna now be sick and tired of this debate. Unlike the screechy a55holes of the right, most Americans recognize that the fight’s over. Let’s just move on. That’s the great and sad thing about us. We can stop giving a s*** on the turn of a dime.”
rafflaw
I would pay to listen to that beer induced discussion! I am guessing that Scalia can put down a few!
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I see Scalia reaching for the top shelf, not a beer. A 60 year old scotch maybe.
============
Leej,
Proffesor T writes: “I think I have a slightly better handle on his intentions and feelings after doing this type of work for a couple decades.”
Maybe I am misreading this but I would think someone has a better handle on their own intentions and feelings then another who is interpreting those intentions and feelings.
I see in saying it outloud it can be said in 2 ways: you have learned more about him over the years or that you do feel you understand him better then he does himself.
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But does Roberts openly expose his true intentions or feelings?
Proffesor T writes: “I think I have a slightly better handle on his intentions and feelings after doing this type of work for a couple decades.”
Maybe I am misreading this but I would think someone has a better handle on their own intentions and feelings then another who is interpreting those intentions and feelings.
I see in saying it outloud it can be said in 2 ways: you have learned more about him over the years or that you do feel you understand him better then he does himself.
AY,
I would pay to listen to that beer induced discussion! I am guessing that Scalia can put down a few!
Nah…… Whats left is for Scalia, Obama and Turley to sit down in the Beir Garten and swill the meaning of life…..
idealist707 1, June 29, 2012 at 10:45 am
Dredd,
Romney has many costumes, but Sct robes are not there.
Seems he favors Reagan-style suits, and sportshirts with rolled up sleeves. Thinks it increases his “common man” image.
==================================
Yep, it is his hoi polloi look.
Dredd,
Romney has many costumes, but Sct robes are not there.
Seems he favors Reagan-style suits, and sportshirts with rolled up sleeves. Thinks it increases his “common man” image.
What’s left, professor?
A joint interview with the Prez. Wouldn’t surprise me. You’re hot now.
I mean Obama needs help getting the public eye to exploit this re his re-election campaign, and your help is important. Moral crisis decision: Come at the President’s call or “screw the duty, Ah’m agin ‘im.
Consider this first. You will talk federalism and the dangers of its abandonment. OK. But he flunked that sub-course and never made it up. Took a course in rhetoric instead. So, what’s to lose.
“well, that is not what I meant.”
So the other panelist was Romney? 😉