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The Roberts Opinion: It's Not All Bad
Townhall.com ^ | 6/29/2012 | Kate Hicks

Posted on 06/29/2012 6:06:10 AM PDT by Servant of the Cross

John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist, and the Chief Justice of a Court that is acutely aware – and wary – of its role in politics. Understand that his opinion, though certainly not ideal for the Right, contains more good news for conservatives in its pages than it does on its face.

So let’s take a look at his surprising opinion – the controlling opinion, as it’s called, which sets precedent and “say[s] what the law is,” as Marshall said so long ago.

The Good News

First: let’s give credit where it’s due. Roberts made it abundantly clear that he’s not a fan of the actual policy. Moreover, he shifted responsibility for this policy back to the American people, and revealed his respect for the separation of powers:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Unhappy with the ruling though you may be, the wisdom contained in that paragraph alone ought to cheer you. And I promise, there’s more!

Now then. What hath he wrought?

“Commerce Clause” is everywhere in the news today, and if you’ll recall, that was considered the basis for both upholding and striking down the mandate. Roberts threw out the government’s argument that it could regulate inactivity because of the “substantial effect” abstention from the market would have on the market as a whole. This, he said, was way too much power:

“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. […] 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.”

Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity. In so doing, he created a concrete definition of Federal power that will influence the way Congress makes law in the future, and the way the Court interprets future Commerce Clause cases. Here’s the key passage to that effect:

“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. […] The Government’s theory would erode those limits [on the Commerce Clause], permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 9 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”

It’s hard to see at first glance why we should celebrate this ruling, especially because it was evidently not enough for Roberts to overturn the mandate. But what Roberts did here was establish a defining limit on the Commerce Clause, which had heretofore not really existed. Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market. Consider, also, the wide array of tools at Congress’ disposal under the Commerce Clause to ensure compliance. Roberts has ruled that Congress can’t criminalize not buying something because of the effect abstention will have on the market. Indeed, that was at issue in this case; the fact that it’s unconstitutional is a win for liberty.

Furthermore, Roberts narrowed the definition of “substantially effects” to encompass activity that is already occurring, and curtailed Congress’ power to presuppose, and then regulate, activity.

“The proposition that congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. […] But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce.”

Now, think back to the time when constitutional challenges to the mandate first began to surface: every legal scholar worth his salt, conservative or liberal, believed the Court would kill the activity/inactivity distinction. Yet that was the major victory the conservatives won in this case, and it’s now legal precedent. The mandate itself lives on, but Congress may never apply the full force of the U.S. government to compel anyone to make a purchase. This, the fight for the Commerce Clause, was the real war. And the right won it. Perhaps the fruit isn’t ripe yet, but it will prove juicy in time.

So now, to turn to the legal reasoning for why the mandate remains law. In other words…

The Bad News

Here’s Roberts: “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

You may keep your law, he says. But let me redefine it for you.

In the opinion, Roberts applies a test from an earlier case, Drexel Furniture, to determine whether the “penalty” meets all the requirements of a tax. It’s another long excerpt, but worth reading, as he’s very clear:

“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance… Second, the individual mandate contains no scienter requirement [i.e. it’s not punitive for breaking the law]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.”

So here’s how it’s going to work from now on: the mandate is now just the “tax on not having healthcare,” which I’m sure will get a snappier name in the coming days, something akin to the “gas tax,” or the “income tax,” which most of us pay. Roberts says as much:

“[A]ccording to the Government…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

So after he invalidated the Commerce Clause justification, he determined that really, the “penalty” doesn’t force participation in the market; hence, why he didn’t throw out the mandate with the Commerce logic. It’s not really forcing people into the market; after all, it didn’t criminalize not owning insurance. It just puts a tax on it, and Roberts notes that taxes are often used to induce certain behavior:

“But taxes that seek to influence conduct are nothing new. […] Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise money, but to encourage people to quit smoking. […] That Sec5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.”

Frankly, this doesn’t look like an expansion of the taxing power. Perhaps he’s articulating more clearly the intent behind so-called “sin taxes,” and other behaviorally-motivated taxes, but he’s not handing Congress more power. He’s just explaining a power they already had, and use.

Remember—he never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and it’s a bad one, and he doesn’t like it, but that doesn’t make it impermissible.

So, is this what the right really wanted to hear? Heck no! We like the dissent, where the whole thing goes. But Roberts is dumb like a fox, and it’s worth looking at the effects this ruling will have on the future, both near and far.

The Upshot

Over, and over, and over, President Obama assured us that this was not a tax. He was not raising taxes on the middle class (that’s what the Republicans were doing, remember?). Nope, says the CJ: ya raised our taxes. Politically, that’s going to prove troublesome for Obama this fall, and in a much more substantial way than having his “signature legislative accomplishment” overturned altogether.

For one, Roberts took away Obama’s ability to campaign against the Court. They upheld his law; he can’t do as he did after Citizens United and construe the ACA ruling as a massively political attack on the little guy and his uninsured plight. He has nothing to blame on the Justices. All they did was recharacterize the “penalty” as constitutional under the taxing power. Roberts robbed Obama of a scapegoat, and stuck Obama with an unpopular law in an election year. Ouch.

Second, Roberts has literally forced Obama to acknowledged that he broke a promise, and raised taxes. And tax increases don’t resonate well with the voters. Now, it’s doubtful Obama will assume responsibility for raising taxes – note that in his speech today, he didn’t acknowledge the Court’s reasoning for the ruling, only that they ruled in his favor. But the GOP has just added a major weapon to its arsenal: want to lower taxes? Then don’t reelect Obama.

This third observation is one that isn’t immediately eminent, but nonetheless just as important as those prior two, if not more so. Roberts has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. As noted above, Americans don’t like taxes. And thanks to the fact that many will opt to pay the tax rather than buy insurance (as that will cost less), the insurance problem in this country hasn’t been solved. The fact that we’ve settled the question of the mandate’s constitutionality means we can turn to the rest of the law, and address the flaws contained therein, and perhaps find a real solution to the healthcare crisis. As for future laws, Democrats lost the ability to hide behind “penalty” language. Roberts saw that the mandate waddled and quacked, and gave it the appropriate name. (He also forbade Congress from actually “mandating” anything, so that name isn’t even correct anymore.) The ACA barely passed the first time; future iterations of this theory are destined to fail, because Congress will have to stand up and say, “We propose to enact a new tax so as to influence your behavior.” If that isn’t the proverbial lead balloon, I don’t know what is.

So there you have it: it’s really not all bad. It’s not what we wanted, but then – as I suspect Obama will learn in the coming months – we must remember to be careful what we wish for.


TOPICS: Constitution/Conservatism; Government; News/Current Events; Politics/Elections
KEYWORDS: katehicks; obamacare; roberts; scotus
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To: Servant of the Cross
Nossir, the news is all bad. There is no silver lining.

Here is my take on this.

51 posted on 06/29/2012 7:05:43 AM PDT by Lazamataz (People who resort to Godwin's Law are just like Hitler.)
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To: Sirius Lee
The ObamaTax is like charging every citizen a federal property tax if they fail to go out and buy property.

I agree. As stated by the author, this decision ... has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. No future appellate court can any longer find this socialist monstrosity constitutional. 0bamaTax has been unconsitutionally applied. So there will be a whole new set of state lawsuits very shortly.

Just think of the > 1,000 0bamacare waivers. Now that it is a "tax", these "waivers" are capricious, unfair and inconsistent. Every entity in the country who does not have an 0bamacare waiver can sue 0bama for his unfair taxation. Tea Partiers unite!!!

Now that's a winning legal proposition with lasting comprehensiveness. Here's Ken Cuccinelli (VA Attorney General) who filed the first State lawsuit against 0bamacare .....

Victory in Defeat (The Va. Attorney General see's a silver lining)

52 posted on 06/29/2012 7:07:08 AM PDT by Servant of the Cross (the Truth will set you free)
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To: Jack Hydrazine

The House has already drafted a repeal. We need 51 Senators to pass a reconciliation bill that rescinds the tax. The odds are not that bad.

If that fails, the States have options that the GOP Governors have decided to use, if they need to, after the election.

After implementation, there will be ample opportunity to sue under a variety of issues from violation of the Equal Protection Clause to grave harm resulting from the law.

Vote. If you live where fraud is rampant, get certified as an election judge. Refuse to pay the tax under civil disobedience and put your ass on the line.

Or moan and groan and wring your hands and predict ultimate inevitable defeat because Daddy didn’t punch out the bully’s Daddy. That will certainly accomplish a great deal.


53 posted on 06/29/2012 7:11:33 AM PDT by reformedliberal
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To: NCLaw441
If we fail to take advantage of any number of tax deductions by, for example, not giving to charity, or not buying a home, etc. etc., our tax liability is increased.

No, those are deductions on a tax that only exists if you actively engage in the commerce of earning wages or playing the stocks. A deduction on a tax on activity is nothing at all like a tax created specifically to punish inactivity.

This is a punitive and direct tax, not a deduction on a voluntary tax.

54 posted on 06/29/2012 7:15:22 AM PDT by Sirius Lee (Goode over evil. Voting for mitt or obie is like throwing your country away.)
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To: reformedliberal
I appreciate your optimism and perhaps it's only the weight of many years that prevents me from digging through the barnyard refuse to find the pony.

I dug for many years. I never found the pony and we are certainly very much worse off than we were when I started digging.

55 posted on 06/29/2012 7:16:34 AM PDT by Proud_texan (Scare people enough and they'll do anything.)
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To: Mmogamer

In a way, they already do.

You can get tax credits for complying with their social engineering. Not complying forfeits the credit and so, you pay more taxes for not doing what they want.

The precedent is set. They cannot use the Commerce Clause to tax. A tax must be plainly stated as such, apply to everyone AND can be rescinded by Congress and/or refused by the States.

All the what-ifs cannot change the precedent. Since litigation can be brought once the the law is implemented, there will eventually be voluminous case law, as well. Statists have elevated case law and precedent above the Constitution, per se. This ruling bites that in the butt.


56 posted on 06/29/2012 7:19:43 AM PDT by reformedliberal
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To: Lady Lucky

Did you read the article? If so, what are your arguments against the reasoning therein? If you didn’t read the article, please do so—it makes some pretty good points.


57 posted on 06/29/2012 7:21:09 AM PDT by SoFloFreeper
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To: Lady Lucky

Did you read the article? If so, what are your arguments against the reasoning therein? If you didn’t read the article, please do so—it makes some pretty good points.


58 posted on 06/29/2012 7:22:11 AM PDT by SoFloFreeper
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To: Servant of the Cross

The Democrats wanted healthcare powered by unicorns and were given healthcare powered by swine.


59 posted on 06/29/2012 7:30:04 AM PDT by Mike Darancette (Democrats are the problem. Vote them out, all of them.)
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To: Servant of the Cross

Or, some great analysis of the sophistry that is Roberts’ contribution, as the case may be.
Roberts comes across as just another educated idiot in all this. The mental chicanery he has employed to reach his ‘studied conclusions’ is (sadly) laughable.
The Founders were men of simple language but great thought. Roberts has firmly positioned himself outside their sphere as a man of simple thought but good grammar.

Sorry...I’m not buying into the silver lining BS.


60 posted on 06/29/2012 7:30:59 AM PDT by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: Servant of the Cross; ShadowFox; Alberta's Child
Slowly but surely, people are waking up to the gift that Roberts bestowed.

1. His ruling killed the commerce clause - yeah, the one with -0- oversight and 100% discretion of the executive and/or cabinet chiefs
2. His opinion forced the recognition that all future legislation is based solely on the power to tax.

For those who wanted a supreme leader (gee, the desire runs in both Rs & Ds) to crush the O-Tax by fiat, it's a bitter disappointment.

But for those who understand that taxes are literally a quagmire where political careers go to die, it's a godsend. There's a reason the Bush tax cuts are called the "Bush Tax Cuts" - tax policy is a key electoral factor.

Also, some are beginning to realize that taxes must be evenly applied ie are subject to equal protection. If there are exceptions/exemptions, like the EIC, it must be based on some underlying basis, as in income under the XVI.

Nowhere in the O-Tax are the taxes actually spelled out. Are they a poll tax, property tax, income tax or whatever tax? Can anyone other than Alberta's Child see what's gonna happen in this arena? Litigation dear reader.

In fact, what if anyone with standing sues on the basis that the tax is a poll tax and the court agrees (in the absence of any countervailing evidence). If Congress doesn't go back to reform/revise the definition, the actual tax construction (not power) of O-Tax is unconstitutional on its face. Congress simply has to do nothing, and the thing dies.

61 posted on 06/29/2012 7:35:22 AM PDT by semantic
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To: NCLaw441

There is a difference between a tax deduction for what you do and a tax for something you don’t do.


62 posted on 06/29/2012 7:36:06 AM PDT by LowTaxesEqualsProsperity
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To: Servant of the Cross

Bull, bull, and bull! He could have killed it and wrote all of that into the decision along with the conservatives in the court. Instead, he Ed kill
America as we know it!


63 posted on 06/29/2012 7:37:02 AM PDT by vpintheak (Occupy your Brain!)
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To: Proud_texan

It is not optimism on my part. I am just stating the obvious in the prior and many other posts yesterday and today.

I have also been around for a long time. The difference is, I never expected a pony and I do not dig through manure trying to find one.

We are worse off because most expectations, like assumptions, are usually unreasonable. We take what is and deal with it as best we can. We are the ultimate sovereigns in this country. It is not an easy job. We simply have to prioritize and take the steps necessary to establish our sovereignty. It has been this way since the founding, which was not easy, unanimous or permanent.


64 posted on 06/29/2012 7:39:43 AM PDT by reformedliberal
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To: reformedliberal
Or moan and groan and wring your hands and predict ultimate inevitable defeat because Daddy didn’t punch out the bully’s Daddy.

I think that is a very clever and appropriate analogy. 'Like'.

65 posted on 06/29/2012 7:41:42 AM PDT by Servant of the Cross (the Truth will set you free)
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To: Servant of the Cross
It is not our job to protect the people from the consequences of their political choices.

Ah. So if 49% of the public wants to follow the dictates of the Constitution, but 51% don't, it's not the job of the Court to rein in the over-reaching 51%? That's great. When the para-military IRS 2.0 is standing on our necks, we can all give thanks the the Commerce Clause is well in check.

66 posted on 06/29/2012 7:43:08 AM PDT by Poison Pill (Obama is the hopium of the masses)
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To: LowTaxesEqualsProsperity

Roberts crossed out the word “penalty” that appears in the law 15 times (and if it’s a penalty, it’s not a tax, as decades of court precedent establish) and rewrote “tax”.

He rewrote the law. That is judicial activism. Judges interpret, not rewrite, laws.

He is a total traitor and no conservative. This is lipstick on pig stuff and, as an attorney who studies constitutional law, I believe this article is nonsense.


67 posted on 06/29/2012 7:51:55 AM PDT by LowTaxesEqualsProsperity
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To: Servant of the Cross

Actually, it is all bad.


68 posted on 06/29/2012 7:52:55 AM PDT by Pollster1 (A boy becomes a man when a man is needed - John Steinbeck)
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To: LowTaxesEqualsProsperity
He rewrote the law. That is judicial activism

BINGO! It was unconstitutional as was, and Roberts with his magic pen suddenly made it constitutional. THAT IS NOT HIS JOB!!!!

69 posted on 06/29/2012 7:53:21 AM PDT by dfwgator (FUJR (not you, Jim))
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To: Servant of the Cross
Fine, Roberts is a hero of the Republic for opposing the commerce clause while redefining "reform" as a tax.

My first question is how does handing congress a new means of passing stealth taxes add up to a silver lining?

My second question is, since Roberts could have denied the commerce clause without reinterpreting the ability to tax... what motivated him to flip?

Third, why add "It is not our job to protect the people from the consequences of their political choices.”...are we being punished?

The whole idea of collecting money from those who don't buy or earn health insurance is a sick joke - they aren't paying taxes now! Does anyone think the fed's will withhold the unearned income credit from "poor folks" who can't afford insurance premiums?

If they can create a tax with smoke and mirrors it will only take a single rider to a defense bill to make that tax apply to the middle class at large - those of us already paying the costs of a welfare state.

Finally, how could he add "...the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.” where did he find a free pass in the legislation?

(End of rant)

70 posted on 06/29/2012 7:53:21 AM PDT by norton
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To: Servant of the Cross

Ping for later.


71 posted on 06/29/2012 7:58:02 AM PDT by Parmy
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To: LowTaxesEqualsProsperity

You posted: There is a difference between a tax deduction for what you do and a tax for something you don’t do.
***
There may be a distinction, but the net result is a change in your tax liability, based upon not acting in a certain way. Whether it is by tax increase or deduction decrease, if failing to act in a government approved manner increases one’s tax liability, the result is the same.


72 posted on 06/29/2012 8:00:51 AM PDT by NCLaw441
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To: norton
Roberts is a hero of the Republic for opposing the commerce clause while redefining "reform" as a tax.

IMHO, neither the author nor I suggest that hyperbole. The title of the article itself ... It's Not ALL Bad ... is clear that there is MORE BAD than good in the ruling, but then getting past that to make lemonade out of lemons.

73 posted on 06/29/2012 8:02:53 AM PDT by Servant of the Cross (the Truth will set you free)
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To: SoFloFreeper

Dear SFF, the net is overloaded today with arguments against the reasoning therein, and I have places where I get paid by the word. Furthermore, Rush Limbaugh is far more entertaining and his arguments are rock solid, so I’d put him at the top of the list of commentators to read on this subject.

www.rushlimbaugh.com


74 posted on 06/29/2012 8:02:53 AM PDT by Lady Lucky
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To: semantic

I don’t think the opinion killed the Commerce Clause, but it has at least stopped its cancerous growth, I hope. Legislation will still frequently state that it is based on the Commerce Clause power, and it will withstand challenge on that ground.


75 posted on 06/29/2012 8:04:24 AM PDT by NCLaw441
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To: Servant of the Cross

Regardless, 5 to 4 majority raises importance of throwing the leftist bums out and putting conservatives in place. I have no doubt Obama would nominate Holder for the next SC vacancy.


76 posted on 06/29/2012 8:05:03 AM PDT by Jumpmaster (Defund the Left!)
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To: semantic

I don’t think the opinion killed the Commerce Clause, but it has at least stopped its cancerous growth, I hope. Legislation will still frequently state that it is based on the Commerce Clause power, and it will withstand challenge on that ground.


77 posted on 06/29/2012 8:08:31 AM PDT by NCLaw441
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To: Servant of the Cross

Bump.


78 posted on 06/29/2012 8:33:45 AM PDT by HIDEK6
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To: EBH
Actually we need to play the clips of them claiming it isn’t a tax over and over and over...and end with “The Supreme Court Ruled Differently.” Maybe even caption over them with Lies, Lies, and more Lies...”

Agree. Now if the Pubbies will only do that.

79 posted on 06/29/2012 8:37:34 AM PDT by MEGoody (Ye shall know the truth, and the truth shall make you free.)
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To: Servant of the Cross
Too many people can't see the forrest for all the trees in their way.

This is no longer about Obamacare. This ruling proves that there is now, no branch of the federal government that will protect the Constitution. They all have nothing but contempt for the Constituion and the law abiding, tax payers of this country.

SCOTUS has decreed that there is no limit to the power of the Government. It has the power to literally force you to do anything.

R.I.P. The American Republic 07/04/1776 - 06/28/2012
80 posted on 06/29/2012 8:46:36 AM PDT by yuleeyahoo (Liberty is not collective, it is personal. All liberty is individual liberty. - Calvin Coolidge)
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To: Servant of the Cross
The biggest problem with the ruling, is that Roberts ruled for something not requested of the court. The administration was not making arguments about the law being constitutional because the 'mandate' was a tax. I can't tell you how many times I've seen supreme court rulings where the justices essentially say "well, if such and so had been brought up, we could have ruled on it, however since it was not, we cannot."

Further, I believe there is legislative history with the act, whereby it's status as a tax was specifically rejected by congress. Roberts totally abandoned his role as a justice and assumed facts and arguments not tendered.

I still haven't made it all the way through the ruling, concurrance, and dissents yet, but I'm not really impressed with it so gar.

81 posted on 06/29/2012 8:52:24 AM PDT by zeugma (Those of us who work for a living are outnumbered by those who vote for a living.)
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To: Servant of the Cross

“[A]ccording to the Government…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. ”
***So it is a tax on the poorest of the poor, those who cannot afford to buy healthcare. We should call it the poor tax.


82 posted on 06/29/2012 8:59:39 AM PDT by Kevmo ( FRINAGOPWIASS: Free Republic Is Not A GOP Website. It's A Socon Site.)
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To: semantic
His ruling killed the commerce clause

It did no such thing. What makes you think it did?

83 posted on 06/29/2012 9:17:29 AM PDT by gdani
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To: Mr. K
Now, Romeny has the rallying cry and significant momentum, 3 months before the election That is the best thing about the decisions (and ONLY thing keeping me sane this morning)

So, you're putting your trust in the man that gave Obama the blueprint for Obamacare and packed the courts with liberals in Massachusetts? That is evidence that you have lost your sanity already.

84 posted on 06/29/2012 9:58:10 AM PDT by Kazan (Mitt Romney: The greater of two evils)
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To: Servant of the Cross
John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist,

It's hard to take the rest of the column seriously after reading that.

85 posted on 06/29/2012 10:02:29 AM PDT by Kazan (Mitt Romney: The greater of two evils)
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To: duckman
That is why we must vote for Romney

Why? So, he can replace Obamacare with Romneycare? Or replace Antonin Scalia with another Roberts or David Souter?

86 posted on 06/29/2012 10:06:02 AM PDT by Kazan (Mitt Romney: The greater of two evils)
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To: Kazan

wtf is wrong with you?

are you not capable of holding a discussion without resorting to name-calling?


87 posted on 06/29/2012 11:04:09 AM PDT by Mr. K (OBAMA MUST BE STOPPED ROMNEY/GINGRICH)
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To: Servant of the Cross; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; ...

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

88 posted on 06/29/2012 11:16:44 AM PDT by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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To: dps.inspect

Absolutely! it was rewritten to include a tax as a way around the interstate commerce clause. Roberts killed us and is a sob in my book. I don’t care how anyone spins it..facts are facts.


89 posted on 06/29/2012 11:26:34 AM PDT by katiedidit1 ("This is one race of people for whom psychoanalysis is of no use whatsoever." the Irish)
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To: Lady Lucky

Uh huh.


90 posted on 06/29/2012 11:53:11 AM PDT by SoFloFreeper
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To: SoFloFreeper

Post of the day!


91 posted on 06/29/2012 12:51:04 PM PDT by Lady Lucky
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To: Servant of the Cross

Some of it is not bad because it’s downright TERRIBLE!


92 posted on 06/29/2012 12:54:13 PM PDT by raccoonnookkeeper (I keep raccoons in a nook!)
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To: Lady Lucky

Thanks. I thought it appropro.


93 posted on 06/29/2012 1:19:38 PM PDT by SoFloFreeper
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To: Beelzebubba

It’s a new tax... based on income.

Elections have consequences.


94 posted on 06/29/2012 2:47:48 PM PDT by rwilson99 (Please tell me how the words "shall not perish and have everlasting life" would NOT apply to Mary.)
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To: Servant of the Cross
I respect your opinion.

But keep reading,

The only lemonaide is that Romney now has a cause to rally the troops behind.

Roberts apparently placed image before principle and did contortions to make it work.

He/the court could go that far to approve Obamacare only a week after bending over to determine that formerly sovereign states don't have the "right" to enfore federal law within their borders.

95 posted on 06/29/2012 9:55:20 PM PDT by norton
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To: Servant of the Cross; ken5050; Alamo-Girl; C. Edmund Wright; Kaslin; xzins; spirited irish; ...
Remember—[Roberts] never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument [i.e., Commerce Clause reasoning that would obliterate any distinction between "active" and "inactive" market participants] in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and it’s a bad one, and he doesn’t like it, but that doesn’t make it impermissible.

And thus Chief Justice Roberts drew the limit to Congressional exercise of its powers under the Commerce Clause. In short, Congress now must acknowledge the free decisions of individuals WRT whether they want to participate in any "market," in this case the "healthcare market." It cannot just lump all citizens into some abstract "market" and then compel their participation in that market. This is a huge recognition and defense of individual liberty against encroachment by the federal government. This is now a SCOTUS precedent that must be followed by all lower courts, and also by all members of the Executive and Congressional branches of government.

The Obama Administration's main defense of the ACA was appeal to the Commerce Clause. It argued that all human beings, simply by breathing, were already participants in the "healthcare market," and thus their behavior in that market was subject to legislation and regulation.

Roberts drove a stake into the very heart of this line of thinking. In the process, he upheld the idea of individual liberty under law that is the very heart of our constitutional order; and he snuffed any concept of the American body politic that sees human individuals as anonymous, inconsequential "'atoms" in some abstract Mass Man....

In short, the whole idea of the "General Will" takes a big setback, and the Will of the People, successfully defended here, steps out into the full light of day....

[Anyone wanting a "backgrounder" on the General Will vs. Will of the People issue — representing the basic, mutually-opposed ideologies of the French and American Revolutions respectively — can perhaps find a helpful retrospective here.]

Thank you, Chief Justice Roberts for this pivotal ruling. And thank you for turning up the heat on His Satanic Majesty by forcing him to "call a spade a spade" — the individual mandate is, pure and simple, a relentlessly regressive TAX, one that largely will be paid by middle-income and poor individuals and families.

And thus the Chief Justice comes about as close as good manners and protocol can allow to calling out the POTUS as a LIAR.

On the other hand, somehow I get the sense that Roberts was implying that he'd just as soon leave "political disputes" to the "political branches" of the government — that is to We the People themselves, and their representatives in Congress.

Of course, the political Left wants all policy disputes resolved in the courts, because they can't otherwise get what they want out of We the People and their representatives in Congress.

What Roberts may have suggested is that SCOTUS' mission is to construe and apply constitutional law, not to resolve political disputes. For that's what elections are all about....

Thank you so very much, dear Servant of the Cross, for the ping to this outstanding article.

96 posted on 06/30/2012 11:47:23 AM PDT by betty boop (We are led to believe a lie when we see with, and not through the eye. — William Blake)
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To: betty boop

I am afraid you are very very wrong. The ruling did not really kill the abuse of the Commerce Clause - moreover - the tax based ruling did not have to be part of that ruling. Sorry, Antonin Scalia, Mark Steyn, Mark Levin, Rush Limbaugh - oh, C Edmund - just a bit weightier than whoever this little Townhall chick is.


97 posted on 06/30/2012 1:50:21 PM PDT by C. Edmund Wright
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To: C. Edmund Wright; Alamo-Girl; xzins
Sigh....

We seem to be having a basic "problem of communication" here....

How on earth do you expect anyone to take your "argument" seriously — when you don't bother to explain it? If you have a problem with anything I wrote, please show how it is invalid, based on your analytical logic and experience.

You can't just swagger into a civil public debate and begin the defense of your argument or point of view with the statement — "The ruling did not really kill the abuse of the Commerce Clause" — by asserting that my analysis is "very very wrong." Which is simply to dismiss what I was saying, evidently from your POV that I must be a moron if I disagree with you or Rush or whomsoever.

I listened to Rush's show for one hour yesterday, and didn't catch a hint of your problem. Of course, it is a three-hour show; so maybe I missed the explosive part — that SCCJ Roberts rolled over and died for progressive causes in this ruling.

Or maybe Rush never said any such thing.

Anynoot, in a civil public debate, at this point it is incumbent on YOU to show the defects of my reasoning, which is based on logic and direct experience.

At least, those would be the "rules" in the world I live in.

To put it crudely, in civil debate, ad hominum attack is not a winning strategy. At least, not in the world I live in.

98 posted on 06/30/2012 5:17:27 PM PDT by betty boop (We are led to believe a lie when we see with, and not through the eye. — William Blake)
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To: betty boop; Alamo-Girl; P-Marlowe; Servant of the Cross; ken5050; C. Edmund Wright; Kaslin; ...
This is a huge recognition and defense of individual liberty against encroachment by the federal government.

My dissent.

Roberts did no such thing as uphold "individual" liberty.

He said that the Fed can tax you and not your neighbor for what you are not doing. That, Sister, is insane.

Betty, you don't like cars, so we’re taxing you, but not your neighbor, for being a transportation deadbeat who makes it necessary for us to run trains. That doesn’t seem to pass the equal treatment requirement to me. Contrary to the argument in this article, it says that you are NOT free to abstain from behavior based on your personal preference. The government isn't ordering you to buy a car under a mandate; it's persecuting you until you do. Some Liberty.

99 posted on 06/30/2012 5:53:22 PM PDT by xzins (Retired Army Chaplain and Proud of It! Those who truly support our troops pray for their victory!)
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To: Servant of the Cross

100 posted on 06/30/2012 5:55:47 PM PDT by Revolting cat! (Bad things are wrong!)
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