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Robertsí job is to protect the Constitution, not the Court
Flopping Aces ^ | 07-02-12 | Alec Rawls

Posted on 07/02/2012 4:16:23 PM PDT by Starman417

"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.

(Excerpt) Read more at floppingaces.net...


TOPICS: Business/Economy; Government; Politics
KEYWORDS: obama; obamacare; roberts; scotus

1 posted on 07/02/2012 4:16:37 PM PDT by Starman417
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To: Starman417

Roberts was protecting his image among the people that matter to him. He isn’t fit to tie my shoes.


2 posted on 07/02/2012 4:27:25 PM PDT by pallis
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To: Starman417

Smack center on the money. USG _specifically_ forbidden to direct tax things, like the machanition of Health as a tax.


3 posted on 07/02/2012 4:36:23 PM PDT by veracious
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To: Starman417
Social Security is clearly unconstitutional.

This guy is smelling the bigger picture. I'm sure many out there have been wondering (were salivating at the thought) what if 0-care was fully smacked down? There is a whole host of other things that would get some mean attention "constitutionally" as a result and I bet social security was one of them.

In my opinion, Roberts and four other justices decided solely based on protecting the federal government first. I bet in that decision lies opinions that "we" can't make it on our own and if my line of theory is right, sadly, true. Large swaths of our population are now in some form dependent on Government (what are the stats now? Couldn't even begin to tell ya because the government plays with the numbers too much) and they are now massing after figuring out they could vote themselves the treasury.

4 posted on 07/02/2012 4:36:54 PM PDT by Michael Barnes (Obamaa+ Downgrade)
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To: Starman417
Roberts did not "gut the commerce clause," or limit in any way the vast unconstitutional expansion of federal power under the New Deal Court

Why was that going to happen after almost 80 years?

If the law was to be overturned, it would be because of something specific in the law that went against the Constitution in a way that other legislation didn't, not because of things it shared with other laws passed over the last three generations.

Overturning a law is a big thing for the Court. It wasn't ever in the cards that it would overturn decades of legislation.

5 posted on 07/02/2012 4:41:14 PM PDT by x
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To: Michael Barnes

You are correct a lot of people are dependent upon the system. But none of that will matter when the system collapses (and it will). These same folks will be left with nothing at all because of decisions like this that move us closer to a collapse. And when that collapse happens the feds. will have unlimited power to tax those left and kill off the old(SS) and sick.

This situation is insane and Roberts is a fool. Those that are dependent on the system are going to be hurt the most.
These folks could not even defend themselves if it comes to that.


6 posted on 07/02/2012 4:44:24 PM PDT by formosa (Formosa)
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To: Starman417

I just heard Mark Levin say the same thing. He should protect the Constitution.


7 posted on 07/02/2012 4:46:19 PM PDT by Signalman
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To: Starman417

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

I have to agree with Roberts. The constitution doesn’t permit or forbid such a tax - the author tends to leave out the obvious.

If the interpretation is a tax, the congress can obviously enforce it and regulate it. If the people vote for clowns that will increase taxes to pay for a huge government programs - guess what: we get what they ask for.

Lots and lots Republicans choose to sit it out at the last election and didn’t care about the Obama discrepancies in his background. It is those folks that get the credit for the mess we’ve had to endure, along with the folks that voted Obama. Don’t blame Roberts.... particularly when he tells it the way it is.


8 posted on 07/02/2012 4:51:24 PM PDT by mike_9958
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To: Starman417
"It is not our job to protect the people from the consequences of their political choices,"

Those 16 words are some of the most frightening I have ever heard from a Supreme Court Justice.

He has signaled that he has no intention of ever finding anything the federal government does unconstitutional.

He has also signaled that he perceives this nation as a democracy, not as a republic, and as long as you can conjure up 50.1% of the vote, you can screw over the other 49.9% of the population to your hearts desire without interference by the Court.

9 posted on 07/02/2012 4:53:02 PM PDT by CharacterCounts (A vote for the lesser of two evils only insures the triumph of evil.)
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To: Starman417
Art. I, §8, cl. 1. In pressing its taxingpower argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155

From Robert's ruling, and in my mind the key part of his reasoning.

10 posted on 07/02/2012 5:01:09 PM PDT by Vince Ferrer
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To: mike_9958
The constitution doesn’t permit or forbid such a tax

Actually, the Constitution expressly forbids a tax of the type Roberts proclaimed - a tax on NOT doing something, in this case, not having an insurance contract the government likes.

The government is permitted under the Constitution to impose an excise tax - a tax on a transaction or action.

But Roberts' tax is a tax on NOT doing something. That is simply a direct tax on people, which is not allowed to be imposed except when allocated among the states based on population.

The Framers recognized how dangerous a direct tax is, that Congress could impose it on groups of people who did nothing but were members of a group Congress didn't like - for example, people who don't carry health insurance.

11 posted on 07/02/2012 5:12:01 PM PDT by Meet the New Boss
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To: Starman417

The older Roberts gets, the more clearly he behaves like his TV doppelgänger, Major Frank Burns.


12 posted on 07/02/2012 5:22:41 PM PDT by King Moonracer (Bad lighting and cheap fabric, that's how you sell clothing.....)
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To: Michael Barnes
This ruling was to protect and expand the “national” government which is dramatically different than a “federal” government.
If one belies a national government of one central power with unlimited power to tax and spend is better than a federal government that has 57 individual sovereign state governments then Roberts is merely carrying out a legacy dating to the ratification of the US Constitution.

Ben Franklin's often quoted phrase “You have a republic if you can keep it.” was a portent of this future. The Constitution itself set up a the adversarial relationship between and a central government on one hand and state sovereignty and individual freedoms on the other. The further removal of state protection by changing the process of selecting US Senators whom, once elected, had no physical or practical ties to the well being of their individual state accelerated the the demise of state sovereignty.

We are living witnesses to the completion of a national government and the demise of any semblance of a republic.

13 posted on 07/02/2012 5:28:25 PM PDT by lag along
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To: King Moonracer

There is a thread about Robert’s decision in the “Mud” case.

Christian Adams says Roberts did the same thing in that case.


14 posted on 07/02/2012 5:32:54 PM PDT by RummyChick
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To: lag along
We are living witnesses to the completion of a national government and the demise of any semblance of a republic.

Exactly!

What Roberts is saying is: if you can conjure up a 51.1% majority, you can screw over the 49.9% left any way you please and I won't interfere.

15 posted on 07/02/2012 5:33:36 PM PDT by CharacterCounts (A vote for the lesser of two evils only insures the triumph of evil.)
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To: Meet the New Boss

I am.

Therefore, I can be taxed. And apparently, chipped.


16 posted on 07/02/2012 5:39:51 PM PDT by combat_boots (The Lion of Judah cometh. Hallelujah. Gloria Patri, Filio et Spiritui Sancto.)
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To: Michael Barnes

Right now, I would guess that aside from Scalia, Thomas and Alito, the justices would say that Social Secutity and Medicare are constitutional. It will take two more conservative justices to terminate those programs.


17 posted on 07/02/2012 5:44:02 PM PDT by Tau Food (Tom Hoefling for President - 2012)
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To: Meet the New Boss

The congress has been doing that for ages then - by your definition.

We get “taxed” for not having kids, not buying a house, etc.

Now we get taxed for not having health insurance.

(I’m not happy about - I’m just saying)


18 posted on 07/02/2012 6:15:22 PM PDT by mike_9958
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To: mike_9958

You’re right that Congress has used the tax code to influence behavior for ages.

But until now, they have done it either by (1) reducing taxes otherwise payable by people who do the approved thing - take out a home mortgage, have children, etc. or (2) just giving someone a welfare payment (including a “refundable tax credit”) for doing the approved thing (e.g., single woman having children - WIC).

They have never before moved beyond tax credits and welfare payments to claim the right to go up to a person and just take a portion of that person’s property away simply because he or she is a member of a population group that didn’t do something the government wanted done.


19 posted on 07/02/2012 6:34:25 PM PDT by Meet the New Boss
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To: Meet the New Boss

I understand but I still think the distinction is a matter of perspective.

Trying to prove the counter argument:

Assume the mandate is a tax, and the health care is something the government is “giving” you, then the service the government is providing is like any other service, and the tax is similar to the tax we pay for any other service (like roads).


20 posted on 07/02/2012 7:34:55 PM PDT by mike_9958
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To: mike_9958

One problem with trying to look at the “mandate/tax” as a user fee like taxes to support road construction is the government is NOT in fact providing health care to people who pay the “tax”.

The people paying the “tax” still have to pay for their own health care.


21 posted on 07/02/2012 7:43:37 PM PDT by Meet the New Boss
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To: Meet the New Boss

“the government is NOT in fact providing health care to people who pay the “tax”.”

I believe the way the system was to be constructed is that every individual will be or can be covered by the government insurance / service.

In the transition period individuals can pay for their own insurance - but I doubt in the end only the more affluent will buy their own, better policies.

Also I believe we are forced to pay for many services that we do not use - you probably could name dozens. For example: We are forced to pay for food stamps services but still have to buy things like food, we pay for the ACLU but still have to buy our own lawyer, etc....


22 posted on 07/03/2012 5:24:14 AM PDT by mike_9958
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To: mike_9958
We are forced to pay for food stamps services but still have to buy things like food

Yes but the federal government can legally tax us under the Constitution with the income tax and excise taxes in order to pay for the food stamp program, interstate highway construction, public defenders in federal courts, and other costs of the federal government like the defense department, etc.

What they are NOT allowed to do under the Constitution is to fund these costs by laying DIRECT TAXES on people such as the "Roberts Tax" unless those taxes are apportioned among the states by population.

23 posted on 07/03/2012 6:10:03 AM PDT by Meet the New Boss
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To: mike_9958
I still can't believe people are this website keep defending this ruling.

"We get “taxed” for not having kids, not buying a house, etc."

Kids/deductions = action, the tax is a credit btw

buying a house = action, not required to buy a house

etc... = action,

Roberts says you exist = inaction (You did not consent to existence), the you are penalized with a tax

Roberts even broke case law from a previous USSC ruling when he interpreted/read into Congress' actions on the penalty. The government lawyers were called out by Scalia on this part and the Statist still ignored case law.

Roberts should be tarred and feathered but fortunately the will is weak and the line way too long.
24 posted on 07/03/2012 6:33:25 AM PDT by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians)
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To: rollo tomasi
“...but fortunately for the Statist crony...”

fat fingers + mobile device = driving grammar Nazis to drink

25 posted on 07/03/2012 6:37:01 AM PDT by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians)
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To: pallis
I'm completely disgusted with the man. How did we put such a weak minded person on the court. And it sucks cause we can't get rid of him.

But the good news is....if he is susceptible to outside pressure then maybe we could put some pressure on him to resign

26 posted on 07/03/2012 6:42:28 AM PDT by YoungBlackRepublican
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To: mike_9958
“...the Statist still ignored case law.”

Sorry, supposedly “settled” law from a previous decision from changing the motives of Congress in mid-stream.

Roberts decision is just one of 7,405,926 reasons why the Anti-Federalists were correct in their assessment of faults found in the Constitution. A Constitution which was allegedly designed for the purpose of limiting the power of government on the individual.

27 posted on 07/03/2012 7:00:59 AM PDT by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians)
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To: Meet the New Boss; rollo tomasi

Don’t mistake my counter argument as an approval of what Roberts did.

My counter argument is primarily to fact that “we the people” get what we vote for; and the interpretation of the laws, that our written by our representatives, are up to perspectives and interpretations of the judges that are appointed.

The fact that Roberts “opinion” or perspective was bent to fill whatever his reasons where are up to interpretation. My feeling is that Roberts stretched the interpretation of the constitution to meet his agenda... which the court is allowed to do.

For me the bottom line is that it is waste of time now to rely on courts to do what is right. We need to elect the people to guard our way of life - quit being lazy and hoping the courts will do it for us. When we know the Democrats want to socialize our way life and we won’t vote for the Republican because they are not conservative enough we get these laws..... and we can’t blame the Republicans we can only blame those who decided to stay home in 2008.


28 posted on 07/03/2012 7:50:57 AM PDT by mike_9958
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To: YoungBlackRepublican

You may be right. I get the feeling he is already headed in that direction because of the epilepsy. There’s no reason to think that, but this whole episode of Americana buffoonery is too strange for mere reason.


29 posted on 07/03/2012 8:11:11 AM PDT by pallis
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To: mike_9958
“and the interpretation of the laws, that our written by our representatives, are up to perspectives and interpretations of the judges that are appointed.”

No, the "dead letter" of a Constitution (Technically on life support with the ability to amend through proper means), there should not be any mind-reading, justification from their own ideological perspective, or interpretations done by disingenuous “brilliant” judges.

30 posted on 07/03/2012 8:40:34 AM PDT by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians)
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To: Starman417
"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,...

That is a dead-on bull's eye. It is specifically the job of the court to "protect the people from the consequences of their political choices."

31 posted on 07/03/2012 8:46:57 AM PDT by TigersEye (Life is about choices. Your choices. Make good ones.)
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To: rollo tomasi

If it were that simple we probably wouldn’t need “brillant” judges.

The Supreme Court has also interpreted laws based on the their current perspectives of the law and it’s applicability to the constitution.


32 posted on 07/03/2012 10:08:54 AM PDT by mike_9958
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To: Starman417

Tax vs penalty is splitting the wrong linguistic hair. Roberts is saying that the insurance premium is the tax because there is a penalty for not paying it. Certainly a penalty on a tax certainly could be viewed as a tax as well, but that is not the central point of his ruling.

It is certainly within the spirit of taxation any time your government forces you to pay the piper. It has now been declared it to be so by law as well as in spirit; as it should be.

The fed’s taxing power is unlimited. Roberts is saying to us that we are fools to rely on the supreme court to protect us from such abuses by splitting linguistic hairs. This because linguistic hairs can be split either way; and rather whimsically as he demonstrates here. If the voters don’t want a single payer healthcare system, then its their job to avoid voting for politicians that do. Roberts could not have been more explicit in his statement and his actions.


33 posted on 07/04/2012 1:01:11 PM PDT by Olden
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To: Starman417; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

34 posted on 07/05/2012 9:31:08 PM PDT by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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To: pallis

Maybe his epilepsy played a significant part in this decision. I just find it hard to believe that he let the left wing media manipulate him so easily.


35 posted on 07/08/2012 10:57:19 AM PDT by YoungBlackRepublican
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To: YoungBlackRepublican

Hard to believe, ...yes, but not unreasonable, considering his change of mind. Obama’s disrespect for our political systems aside, it is worth noting the suddenness and the persistence of his attacks on the SC, especially on Roberts. The media was quick to join in, indicating the left has done its research, and considers Roberts vulnerable to criticism and pressure. It could just be that Roberts isn’t the principled intellectual and legal scholar we have believed him to be. He may well be a McCain in robes, simply an establishment Republican who wants to loved by the other side.


36 posted on 07/08/2012 11:50:57 AM PDT by pallis
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