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Randy Barnett says Roberts’ tax power argument is “lame” but “easily fixed”
Washinton Examiner ^ | June 29, 2012 | Philip Klein

Posted on 06/30/2012 6:10:27 AM PDT by gusopol3

Back in 2010, Georgetown Law professor Randy Barnett, who has been described as the legal architect behind challenges to the health care law,.......Yet in the wake of the Chief Justice John Roberts’ majority decision to uphold the mandate on taxing power grounds, Barnett has been downplaying the legal significance of that precedent, especially relative to the Court’s ruling that the law was not allowable under the Commerce Clause.......“Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power....

(Excerpt) Read more at washingtonexaminer.com ...


TOPICS: News/Current Events
KEYWORDS: abortion; deathpanels; obamacare; obamacaredecision; obamacaremandate; roberts; zerocare
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Despite the adverse policy outcome for supporters of limited government, Barnett said the decision advanced the legal cause for limited government.

“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”

1 posted on 06/30/2012 6:10:31 AM PDT by gusopol3
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To: gusopol3

IMO, the biggest problem with his argument is that if Roberts could use “flimsy reasoning” to turn the biggest Supreme Court case of decades on its head, why won’t he in particular for decades to come, or somebody else in general, be able to do the same thing on any case.


2 posted on 06/30/2012 6:14:56 AM PDT by gusopol3
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To: gusopol3

This action is a gigantic wake up call. The majority of the country disagrees with Robert’s interpretation of this new law. Kagan shouldn’t have even been permitted to vote.


3 posted on 06/30/2012 6:18:19 AM PDT by FreedBird
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To: gusopol3
“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”

Horsehockey. What we have seen is that certain justices will vote in whatever manner they deem fit to push their own agenda, precedent be damned, with the classic example being the inherent contradictions, just a few months apart, between Raich and Gonzales, as noted by Clarence Thomas in his dissent in Gonzales.

4 posted on 06/30/2012 6:18:24 AM PDT by dirtboy
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To: FreedBird

Taxation with Misrepresentation


5 posted on 06/30/2012 6:19:11 AM PDT by gusopol3
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To: gusopol3

He/they will do whatever suits their whim at the time, what we call the Constitution means nothing to those people.


6 posted on 06/30/2012 6:20:03 AM PDT by izzatzo (Just beat Obama.)
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To: gusopol3

It wasn’t “flimsy reasoning” it was completely fallacious reasoning. Roberts held that two contradictory ideas can BOTH be true i.e. its a tax, its not a tax. His ruling was blatantly ridiculous.


7 posted on 06/30/2012 6:22:09 AM PDT by HerrBlucher ( Don't feed the commies.........your tears. Think about it.)
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To: gusopol3

http://www.halfsigma.com/2006/01/clarence_thomas.html

Clarence Thomas, most brilliant Justice

Thomas has been on a tear lately, making himself stand out as the true thinker on the Court and relegating Scalia to the role of ideaological hack.

A few months ago, the Supreme Court decided Gonzales v. Raich in which the majority held (with Scalia being part of the majority) that the Controlled Substances Act (CSA) gave a regulatory agency the power to overrule a state’s decriminalizaton of marijuana for medical purposes.

Thomas dissented based on ennumerated powers issues. He said that growing marijuana for personal use was an intrastate issue and outside the reach of the interstate commerce clause.

Today, Thomas dissents in Gonzales v. Oregon in which the Supreme Court ruled that the CSA does not grant the authority to prohibit doctors from prescribing medicine for suicide purposes if state law permits it.

Has Thomas somehow flip-flopped on the issues? Not at all! If you read Thomas’ dissent, it’s clear that he’s dissenting in order to call out the hypocrisy of the majority who interpret the CSA based on their idealogical whim and not on sound legal principles. Basically he’s saying to the majority, “hey you morons, you decided in Raich that that the CSA gives the government power to do whatever it wants with regards to regulating drugs, you’re a bunch of hypocrites to suddenly change your mind here. I’m just agreeing with your first dumb decision because of stare decisis.”


The takeaway? Stare decisis doesn’t matter for jack with this court.


8 posted on 06/30/2012 6:22:34 AM PDT by dirtboy
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To: gusopol3

Most people I know cannot understand who these people think they are? This is not a dictatorship. The MSM and the Democrat Party should not be permitted to dictate to the majority of the country.


9 posted on 06/30/2012 6:22:34 AM PDT by FreedBird
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To: gusopol3

Most people I know cannot understand who these people think they are? This is not a dictatorship. The MSM and the Democrat Party should not be permitted to dictate to the majority of the country.


10 posted on 06/30/2012 6:22:54 AM PDT by FreedBird
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To: gusopol3

Most people I know cannot understand who these people think they are? This is not a dictatorship. The MSM and the Democrat Party should not be permitted to dictate to the majority of the country.


11 posted on 06/30/2012 6:22:54 AM PDT by FreedBird
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To: gusopol3

We only have two or three decades-worth of brilliant decisions from this Chief Justice ahead of us.


12 posted on 06/30/2012 6:27:23 AM PDT by Flag_This (Real presidents don't bow.)
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To: FreedBird
Kagan shouldn’t have even been permitted to vote.

Which brings to mind Roberts' earlier, surprising defense of the justices' unquestioned integrity and professionalism in deciding whether or not to recuse themselves. It now looks like he was providing cover for Kagan to hear the Obamacare case.

13 posted on 06/30/2012 6:28:32 AM PDT by Will88
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To: dirtboy

My daughter was in a small college seminar group with Roberts a few years ago. He said that his general philosophy is to leave decisions to the people in the decisions made by their elected representatives, since, in his opinion, it is much easier to change the Congress than it is to change the members of the Court. I guess this ruling was consistent with that. However, it is totally divorced from the reality of my entire life due to its ignoring of the heavy propagandizing involvement of our MSM. They are even now allowing the administration to get away with morphing the basis from taxing power back to a mandate, despite the explicit rejection of that. Opponents can’t let that happen. “Taxation by Misrepresentation” needs to be reinforced early and often , like “It’s the economy , stupid” was in 1992.


14 posted on 06/30/2012 6:29:04 AM PDT by gusopol3
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To: gusopol3

*bump*


15 posted on 06/30/2012 6:31:16 AM PDT by Yardstick
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To: gusopol3
The Roberts ruling had to be a Tourette Syndrome tic...

...otherwise there is no reason.

16 posted on 06/30/2012 6:32:38 AM PDT by Happy Rain ("Obama is doing to America what Bill Clinton did to Monica Lewinsky--"He's Riden' Dirty!"')
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To: gusopol3
This is an excellent article!

I asked him whether a future Congress could just repeat what we saw in this instance – call a mandate a penalty for the purposes of passing the bill, then switch around and call it a tax in court. “That is never going to happen again,” he insisted. “No one is ever going to fall for that again…The findings in the (health care) bill were Commerce Clause. The findings in the next bill will have to be taxing power.”

He's right. The Commerce Clause argument is dead. The taxing argument can be decided at the ballot box.

I also agree with Barnett that five justices on our side is not enough as we always have to get all five. We need more and a Romney two term presidency would give us more. Then our odds would greatly increase.

17 posted on 06/30/2012 6:32:50 AM PDT by randita
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To: gusopol3

Maybe we can get John to peruse all our laws, and rewrite the ones he thinks he can improve. We can call him Chief Editor and Legislator. We don’t need a Supreme Court, now that we have John cleaning things up.


18 posted on 06/30/2012 6:33:00 AM PDT by pallis
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To: gusopol3
.......“Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power....

Yes "far less dangerous" in that there are only 5 rounds in the cylinder instead of 6.....But let's not forget that instead of .22LR rounds, they are now 44 Magnums...

19 posted on 06/30/2012 6:33:20 AM PDT by trebb ("If a man will not work, he should not eat" From 2 Thes 3)
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To: gusopol3
My daughter was in a small college seminar group with Roberts a few years ago. He said that his general philosophy is to leave decisions to the people in the decisions made by their elected representatives, since, in his opinion, it is much easier to change the Congress than it is to change the members of the Court.

So why even have a Supreme Court, then, if it fails to enforce limited powers? Roberts just turned himself into a turnstile that never locks.

20 posted on 06/30/2012 6:34:19 AM PDT by dirtboy
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To: randita
He's right. The Commerce Clause argument is dead.

It is no where near dead.

There is a huge difference in an opinion between dicta and the ruling.

Roberts comments about the commerce clause is mere dicta and does not need to be followed by any court in the future.

21 posted on 06/30/2012 6:35:58 AM PDT by CharacterCounts (A vote for the lesser of two evils only insures the triumph of evil.)
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To: gusopol3

On his first day in office, Romney just has to announce that he’ll waiver any person or affected entity that requests it.


22 posted on 06/30/2012 6:36:32 AM PDT by TruthFactor (The Death of Nations: Pornography, Homosexuality, Abortion)
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To: gusopol3

On his first day in office, Romney just has to announce that he’ll waiver any person or affected entity that requests it.


23 posted on 06/30/2012 6:36:48 AM PDT by TruthFactor (The Death of Nations: Pornography, Homosexuality, Abortion)
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To: gusopol3
This whole Commerce Clause "restriction" could easily be overturned by 5-4 in the near future.

Read the Ginsburg Dissent. The wholesale use of the Commerce Clause to limit personal liberty is frightening.

24 posted on 06/30/2012 6:37:12 AM PDT by Paladin2
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To: randita
He's right. The Commerce Clause argument is dead.

Hardly. A tremendous amount of usurpation has been done to date using the Commerce Clause as justification. Roberts basically said it cannot be taken to the next level. But so what? Now usurped powers can be declared a tax, no Commerce Clause needed. All Congress has to do is prohibit something and attach a tax penalty and Roberts would vote to uphold it, the Tenth Amendment be damned. This was a really, really bad day for Federalism.

25 posted on 06/30/2012 6:37:42 AM PDT by dirtboy
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To: dirtboy
Thomas has been on a tear lately, making himself stand out as the true thinker on the Court and relegating Scalia to the role of ideaological hack.

Agree--I am encouraged that somebody else sees Scalia for what he really is
26 posted on 06/30/2012 6:43:05 AM PDT by uncbob
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To: dirtboy

Well, they do say no law was declared unconstitutional from 1937 to 1995, right? So it really hardly ever functions as a restraint on Congressional power any way. I guess the main argument for trying to control a super-majority of the Court is to try to keep them from making up new laws.... except that’s what legacy seeking Roberts just did.


27 posted on 06/30/2012 6:43:47 AM PDT by gusopol3
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To: Paladin2
Read the Ginsburg Dissent. The wholesale use of the Commerce Clause to limit personal liberty is frightening.

And this ruling isn't?

Think about it. According to Roberts, this activity is prohibited under the Commerce Clause but acceptable under Congress' power to tax.

So now, they can do just about anything as long as a tax penalty is involved. The taxing power just became the over-arching power in the Constitution. Heck, they could gut just about any other section as long as a tax is involved.

28 posted on 06/30/2012 6:44:05 AM PDT by dirtboy
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To: gusopol3

This is why it is SO important to know who you are electing (congresscritters) & what they stand for, who you elect as president, and thus who gets appointed. The other part of this issue is laws, rules, etc. are only for those who are lawful. Sort of like gun laws - the criminals don’t follow them, only the law abiding. We currently have elected a LAWLESS president who thumbs his nose at the Constitution - he should be impeached or voted out. The congresscritters WE elected don’t have the courage/will to deal with a lawless president so it is up to us to vote him out. It should have been up to us to keep him from being elected in the first place. Obviously, he has appointed 2 Supremes which is worrisome. Now we find out that Roberts is willing to twist the law into a pretzel to get a specific outcome. The ‘vetting’ of everyone elected/appointed to represent the people currently stinks and until we start paying attention & making some demands & enforcing accountability, this is what we’re going to get.


29 posted on 06/30/2012 6:45:35 AM PDT by MissMagnolia (Being powerful is like being a lady. If you have to tell people you are, you aren't. (M.Thatcher))
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To: HerrBlucher

If Roberts thought the mandate was OK under the government’s taxing power he should have said so and told them to go back and rewrite it as tax law. But no..In a classic case of judicial activism, he rewrote the law himself.


30 posted on 06/30/2012 6:47:22 AM PDT by csmusaret (I will give Obama credit for one thing- he is living proof that familiarity breeds contempt.)
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To: gusopol3
Yeah, he'll leave decisions to the people as long as they don't express it through their state legislatures.

“Arbitrary and capricious” is how the appeals court described the Arizona law and Scotus agreed. This despite that law went through the committee process, had floor debates, etc.

OTOH, Obama was written in the dark of night by Marxists moles, without hearings, no floor debate, and not a single rank and file Congressman or Senator even knew what it contained.

So which law was arbitrary and capricious? A pox on Scotus and 'F all rats.

31 posted on 06/30/2012 6:47:25 AM PDT by Jacquerie (The American Revolution is dead.)
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To: Jacquerie

Make that “Obamacare was written in the dark . . . “


32 posted on 06/30/2012 6:48:31 AM PDT by Jacquerie (The American Revolution is dead.)
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To: FreedBird

In a representative democracy as we have the majority does not rule


33 posted on 06/30/2012 6:48:44 AM PDT by scram2
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To: gusopol3

This was no victory. Instead of “Government can regulate anything it wants to under the commerce clause” we have “Government can regulate anything it wants to under its taxing authority”.

The bill did not originate in the house (as bills that tax and spend are supposed to). No one called it a tax when they wrote it; rather the authors explicitly explained why it was not a tax. Obama continues to deny that it is a tax, and the solicitor general argued before the Supreme Court that it was a “penalty, not a tax”. And can you even have a penalty without a crime?


34 posted on 06/30/2012 6:49:15 AM PDT by TennesseeProfessor
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To: gusopol3
All Roberts did was speed up the process to the destruction of this once great nation.
Here's all Romney has to do get rid of this crap. When he's President, order the Treasury Dept. to grant automatic waivers on the IRS forms for any compliance to any aspect, including fines, for Obamacare. He wouldn't be granting amnesty since the SCOTUS rules it wasn't a criminal act, it's basically forgiving any taxes involved which the IRS does everyday for other things.

He could do this for at least 4 years and by then maybe congress can have some sort of repeal of it.

35 posted on 06/30/2012 6:50:23 AM PDT by tobyhill (Conservatives are proud of themselves, Liberals lie about themselves)
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To: gusopol3

What legal challenges are left?

1. A central portion of this “law” is a tax, and the PPACA tax law originated in the Senate, in violation of the Constitution. Article 1, Section 7: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The appropriate remedy is to overturn the entire ObamaCare bill and for Congress, if they choose, to re-pass after originating a new bill in the House.

2. By significantly rewriting the legislation to interpret this law as Constitutional, and doing so in a manner that congressional supporters who actually crafted and voted for the bill are disputing, the Supreme Court violated Article 1, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The appropriate remedy is to overturn the entire ObamaCare bill and allow the Congress to do the rewrites that Roberts claimed would make this constitutional.

3. By laying a tax that is not an income tax (the ONLY federal tax not apportioned according to population that is permitted by Amendment 16), one that is not apportioned among the states in proportion to population, Congress has violated Article 1, Section 2: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . .” The appropriate remedy is to find the mandate unconstitutional and overturn the entire ObamaCare bill.

4. The passage that, “(A) RELIGIOUS CONSCIENCE EXEMPTION- Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section.” exempts some religions and not others from this tax. Religious exemptions from taxes are a particularly egregious violation of the first clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” This also violates the Fourteenth Amendment: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The appropriate remedy is to exempt all Americans from the tax associated with the individual mandate and thus overturn the entire ObamaCare bill.

5. The “tax” associated with ObamaCare is described in the law and by the legislators who signed it, even after the Court’s rulings, as a penalty or a fine. The amount of this fine is up to $2250 per family per year, an excessive fine for inaction, in violation of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The appropriate remedy is to exempt all Americans from the excessive fine associated with the individual mandate and thus overturn the entire ObamaCare bill.

Any comments, criticism, other ideas?


36 posted on 06/30/2012 6:51:45 AM PDT by Pollster1 (A boy becomes a man when a man is needed - John Steinbeck)
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To: gusopol3
Roberts' assertion might be credible except as seen in the light of his prior decision. In what way did the Court's decision in the Arizona case "leave decisions to the people in the decisions made by their elected representatives?"

Nah. That claim being made by his conservative apologists won't hold water. Both of these decisions were examples of raw judicial activism and both give us a glimpse into who Roberts actually is--a liberal, activist jurist.
37 posted on 06/30/2012 6:55:39 AM PDT by Sudetenland (Member of the BBB Club - Bye-Bye-Barry!!! President Barack "Down Low" Obama)
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To: TruthFactor
BINGO! All it takes in a little checkmark by the line that reads, “Yes, I wish to take the automatic waiver to any penalties in this provision”.

Yesterday I was pissed at Roberts but while I still feel this was a stupid decision, there was a part of the ruling that could make this so obsolete that, like many others, this law means nothing. Taxation is the easiest thing to change by just the President since they control enforcement of taxation laws and the States don't have to deal with Medicaid Expansion.

A law unenforceable is an obsolete law.

38 posted on 06/30/2012 7:00:00 AM PDT by tobyhill (Conservatives are proud of themselves, Liberals lie about themselves)
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To: Sudetenland
".....both give us a glimpse into who Roberts actually is--a liberal, activist jurist. "

CJR:

""I don't necessarily think that it's the best approach to have an all-encompassing philosophy.""

Like a bouncing superball.


39 posted on 06/30/2012 7:03:18 AM PDT by Paladin2
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To: All
There is a tiny provision in the law that exempts enforcement or penalties based on Religious Principles.

Claim it and let them discriminate.

40 posted on 06/30/2012 7:04:07 AM PDT by tobyhill (Conservatives are proud of themselves, Liberals lie about themselves)
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To: Paladin2
Alternating spin reversal
41 posted on 06/30/2012 7:06:22 AM PDT by Paladin2
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To: gusopol3

I would like to see all the opinions from this SCOTUS in order to compare the reasoning of all the Justices....Justice Roberts does seem a tad addled...does his ‘reasoning’ make complete sense? I could find nothing on their web page....


42 posted on 06/30/2012 7:10:18 AM PDT by yoe (Proud to be part of the Tea Party movement.....!!!!!)
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To: csmusaret

Correct. It’s the only conceivable, reasonable take. The fact that the Congress failed to portray it as a tax was the fault of Congress, and that fault should have been corrected by Congress, not a, or even 5, justices. Absolutely ridiculous, puerile decision.


43 posted on 06/30/2012 7:11:02 AM PDT by Mach9
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To: gusopol3

Nothing is easily fixed in a world where the truth and the meaning of words have become plastic. In such a world thre is no law, only Elites and their subjects.


44 posted on 06/30/2012 7:11:05 AM PDT by TalBlack ( Evil doesn't have a day job.)
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To: HerrBlucher
It wasn’t “flimsy reasoning” it was completely fallacious reasoning. Roberts held that two contradictory ideas can BOTH be true i.e. its a tax, its not a tax. His ruling was blatantly ridiculous.

Roberts is on epilepsy meds that can mess up your mind. Michael Savage has been talking about this. What is galling is that Roberts is very pleased with himself and has been wisecracking about his idiotic decision that threw the other Justices for a loop. They were struck dumb.

45 posted on 06/30/2012 7:12:24 AM PDT by dennisw
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To: gusopol3

“Georgetown Law professor”

My brain immediately translates that into “raving jackass”.


46 posted on 06/30/2012 7:12:49 AM PDT by Psycho_Bunny (Future generations will curse what we've done to them.)
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To: dirtboy

“So now, they can do just about anything as long as a tax penalty is involved. The taxing power just became the over-arching power in the Constitution. Heck, they could gut just about any other section as long as a tax is involved.”

Correct—with one huge BUT. Congressmen need to get re-elected, and hiking taxes of nearly any variety won’t get them there. Justices don’t need to run for office.


47 posted on 06/30/2012 7:15:31 AM PDT by Mach9
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To: FreedBird
The MSM and the Democrat Party should not be permitted to dictate to the majority of the country.

The problem is, we have ALLOWED it to happen. Just like everything else, nobody seems to care until it affects them.

It's way past time for another revolt. Our Founding Fathers would have started shooting by now.

48 posted on 06/30/2012 7:30:33 AM PDT by unixfox (Abolish Slavery, Repeal The 16th Amendment!)
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To: dennisw

Roberts was blackmailed over the illegal adoption of his kids:

XXXXX DRUDGE REPORT XXXXX THU AUG 04, 2005 11:35:09 ET XXXXX

NY TIMES INVESTIGATES ADOPTION RECORDS OF SUPREME COURT NOMINEE’S CHILDREN

**Exclusive**

The DRUDGE REPORT has uncovered a plot in the NEW YORK TIMES’ newsroom to look into the adoption of the children of Supreme Court Nominee John G. Roberts.

http://www.freerepublic.com/focus/f-news/2900724/posts


49 posted on 06/30/2012 7:31:24 AM PDT by jimbo123
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To: Pollster1

Superb. Especially #1, and someone mentioned this on Fox. Unsurprisingly, it went nowhere. Which leads to another question within your argument: If the bill originated in the Senate (and of course it did), is it even possible to call or rename (or adjudicate) the penalty a “tax”? Secondly, as has been mentioned here, could Obamacare have passed EITHER body as a “tax”? Elections surely have consequences, but Roberts’ ruling mooted those consequences. He had the PERFECT argument for returning the whole monstrosity to Congress. The fact that he didn’t is most troubling of all.

All five are excellent. How do all or even one proceed in a courtroom? As it is, they’ll be great arguments for repeal in the House, after the election.


50 posted on 06/30/2012 7:35:59 AM PDT by Mach9
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