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Justice Robertsí Reckless Restraint?
PJ Media ^ | June 29, 2012 | Scott Ott

Posted on 06/29/2012 11:20:09 AM PDT by Kaslin

Was this capitulation? Is he irrational or cowardly? Off his meds? You decide

Conservatives, Constitutionalists, and originalists grew increasingly alarmed as word trickled from the Supreme Court yesterday that Chief Justice John Roberts had voted with “the liberals” to uphold the Patient Protection and Affordable Care Act — four months before the election! Roberts has handed President Obama a victory on his singular legislative accomplishment, they said, and abandoned all reason in calling the individual mandate a “tax,” though even Congress didn’t call it that when the bill was passed.

Even wobbly Justice Anthony Kennedy joined the conservative stalwarts Samuel Alito, Clarence Thomas, and Antonin Scalia in deriding Roberts for rewriting ObamaCare to save it. Their dissenting opinion was simple: Congress calls the fee for refusing to purchase insurance a “penalty,” so that’s what it is. Roberts shouldn’t try to make it something lawmakers didn’t intend.

Indeed, when the president peddled his plan, he repeatedly denied creating a new tax. But before the Court, when the future of the law hung in the balance, the administration argued that if the Court could not uphold it on constitutional “commerce clause” grounds, then perhaps it could be considered part of Congress’ constitutional taxing power. The dissenters argue against such obvious dissembling, and note that the Court has “never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax.”

Roberts agreed with his conservative colleagues that Congress has no power to command consumers to buy insurance, since the “commerce clause” can’t regulate failure to engage in commerce. Having rejected the government’s main argument, and saved us from a hellish future of untrammeled congressional power, he felt compelled to grapple with the administration’s Plan B — the tax gambit. There, his deference to the legislative branch supported by a long history of precedent stayed his hand from striking down the law.

Was this capitulation? Is he irrational or cowardly? Off his meds? You decide.

Here’s a brief summary of the reasoning that led him to conclude the individual mandate is a tax, and thus within the power of Congress.

1. It’s not the court’s job to evaluate the wisdom or practicality of a law, merely to determine whether it violates the Constitution. 2. Respecting the separation of powers, the Court should make every reasonable effort to uphold legislation. 3. The government’s fall-back justification for the individual mandate was the power of Congress “to lay and collect taxes…to provide for the…general welfare of the United States.” (Article 1, Section 8 ) 4. No matter what the law calls the individual mandate, if it looks like a tax and quacks like a tax, it’s a tax. 5. The “shared responsibility payment” for failure to buy health insurance is collected by the IRS, based on income, and clears the payor of responsibility to the law. If it were just a penalty, the payor would be considered guilty of unlawful activity before the bar of justice. But under ObamaCare, you’ve done your civic duty even if you fail to buy insurance, so long as you pay the fee. 6. Because it’s a tax, Congress may impose it without offending the Constitution’s enumeration of powers.

For years, conservatives have argued that the Supreme Court should not decide cases based on ideology or personal preference, but upon the text of the Constitution, and upon established precedent under that charter. Justices should not legislate from the bench.

While judicial lawmaking is exactly what Justices Alito, Thomas, Kennedy, and Scalia accuse Roberts of doing, he asserts precisely the opposite. He refrains from overturning a law that, clearly, he considers ill-advised, badly crafted, and ultimately doomed.

His reckless restraint, as some might view it, is anchored in the doctrine of separation of powers. He also telegraphs to his readers that the way to deal with this offensive law is near at hand, in November.

While I would prefer an outcome that supports my principles, and advances the cause of my party, my primary allegiance must be to the process established under the “supreme law of the land.”

The easier solution to a vexing problem is to have someone powerful remove it. The hard way calls for devotion, on your part, to upholding our values — using our constitutional prerogative to replace the incompetent, the corrupt, and the compromised.

If we should fail to do so this November, our whining about Roberts’ betrayal will do nothing to stop the onslaught of ObamaCare. And in the near future, when a law comes along that we wish to see upheld, we’ll be grateful for the precedent set by Roberts’ reasonable restraint.


TOPICS: Government; Health/Medicine
KEYWORDS:

1 posted on 06/29/2012 11:20:13 AM PDT by Kaslin
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To: Kaslin

2 posted on 06/29/2012 11:22:41 AM PDT by AngelesCrestHighway
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To: Kaslin
Picked a real winner there Georgie!...Republicans are their own worst enemy! I don't know why the whack left hates Bush so much, he helped pass Obamacare!
3 posted on 06/29/2012 11:29:02 AM PDT by AngelesCrestHighway
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To: AngelesCrestHighway

How ridiculous. President Bush was supposed to have known that Chief Justice would let himself get intimidated by that arrogant pos occupant in the white hut and by leaky Leahy? Get real *rme*


4 posted on 06/29/2012 11:58:32 AM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: bigbob
This is the money quote:

“For years, conservatives have argued that the Supreme Court should not decide cases based on ideology or personal preference, but upon the text of the Constitution, and upon established precedent under that charter. Justices should not legislate from the bench.”

Yet to listen to most of FR, we only care about judicial activism when the other side does it.

All the angst and vitriol directed towards Justice Roberts is wrong. Bad laws come from Congress, not the Court, and the only solution is going to have to come from the same place.

It would have been so much easier if the Court had struck it down in it's entirety, but was easy the answer?

Representative Louie Gohmert has a succinct summary of the Court’s decision today. The Supreme Court told us today “of course they are liars. You should have known they were liars.”

“If America doesn’t wake up and replace all of those who lied to them to get this bill passed, them shame on us, we don’t deserve this nation. It’s time we paid the price to preserve this gift we were given. God help us and the people who love the liars.”

http://pjmedia.com/jchristianadams/2012/06/28/louie-gohmert-on-court-decision-they-are-liars/

5 posted on 06/29/2012 12:13:09 PM PDT by smoothsailing
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To: Kaslin
Interesting. This blogger thinks Roberts is wiser than Alito, Scalia, and Thomas put together, even though he admits Roberts' decision is based on "dissembling."

This is why it is futile to try to turn this sow's ear into a silk purse. Yeah, whining does no good. Neither does mental masturbation, like this article. Just vote in a good bunch of conservatives to congress, elect Romney president, and hope for the best.

6 posted on 06/29/2012 12:13:59 PM PDT by hinckley buzzard
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To: Kaslin

Bad ruling like dead fish – cannot stand test of time


7 posted on 06/29/2012 12:16:49 PM PDT by Tupelo (TeaParty member, but no longer a Republican)
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To: Kaslin


8 posted on 06/29/2012 12:18:36 PM PDT by dragnet2 (Diversion and evasion are tools of deceit)
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To: Kaslin
I found Robert's argument spurious. It's a tax how exactly? Does that make your driver licensing a tax as well? What if Obama introduced a head tax on Chinese people? That would be OK, because Congress can tax whomever and however they please?
9 posted on 06/29/2012 12:28:47 PM PDT by Sam Gamgee (May God have mercy upon my enemies, because I won't. - Patton)
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To: Kaslin

bump


10 posted on 06/29/2012 2:42:30 PM PDT by jonno (Having an opinion is not the same as having the answer...)
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To: Kaslin

How come all these twisted Supreme Court ruling only happen when considering liberal legislation?


11 posted on 06/29/2012 2:52:42 PM PDT by Bratch
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