Sunday, July 08, 2012

What Hath Justice Roberts Wrought?

There are as many opinions concerning whether or not that pox called ObamaCare is really legal as there are opinionaters out there spouting them, like whales sounding in the deeps of cyberspace.

After the fold I’ll share my favorite take on the whole mess, but for the moment our translator, JLH, has waxed wickedly satirical on John Roberts’ tie-breaking decision to find for the President’s legislation. This parody is so breathtakingly good it eases the heartbreak a bit.

Would that one could say the same for that monster of a law. It is full of nooks and crannies — or crooks and nannies — where many a surprise tax has been secreted, waiting to explode onto the unsuspecting citizen - while it turns his pockets out to gather any loose change it might have missed. How were we to know this was "the change" Obama intended?

A little comfort then, from JLH’s rendition of a judicial Hamlet, one I would love to see the Chief Justice perform. I’ve often thought BHO, our Dauphin, made a fine Hamlet, especially given his father fixation. However, this conceit by JLH is finely crafted so I give way to his creation:

To Be…or — NOT!

a Shakespearean rumination on the recent Supreme Court decision

Justice Roberts’ Midnight Soliloquy

To see, or not to see, that is the question.
Whether ‘tis nobler in the mind
To suffer the shrieks and sighs
Of Outrageous Leftists,
Or to take a stand against a sea of morons
And, by opposing, enrage them. To try to do
No more and by not doing, say we end
The uproar and the thousand OCCUPATIONS
Democracy is heir to. ‘Tis a consummation
Devoutly to be wished. To cry, to weep,
Perchance to grovel. Ay, there’s the rub,
For in that groveling, what thoughts may come,
When we have sloughed the Constitution off,
Must give us pause. There’s the respect
That makes calamity of so long a tenure:
For who could bear the whips and scorns of time,
The oppressive wrong, the angry man’s outrage,
The pangs of deprived rights, the law’s dismay,
The impotence in office and the spurning
Of the patently unworthy,
When he himself might make an end
With naked capitulation. Who wants to hold a post
And work and strain under a tiring load,
Except that the fear of what comes next,
The unacknowledged tendency, from which
No RINO ever returns, confuses the mind,
And makes us rather give in to those ills we have
Than turn to others we only half believe in.
Thus politeness does make cowards of us all
And thus the feeling of what is right
Is coated over with superficial thought.
And ideas of great intensity and weight
In this respect no longer have their urgency,
And lose their impetus. Gently now,
Fair Leftist kindness, in your prayers
May all my sins be remembered.

[Exit, stage left.]

*   *   *   *   *   *   *   *   *   *   *   *   *   *   *

And now for a more pedestrian, though still entertaining exegesis on that momentous decision by the Chief Justice of our Supreme Court. It would do well to remember this tide can be turned, despite Obama’s claim that soothing the seas are his department…

For our European readers, let me say that the editorial below, from Breitbart, is just one viewpoint — and a hotly contested one at that. The social media in the U.S. fizzed and buzzed and burned after the ruling was declared. They continue to bubble even now, and there is a brisk market in “Cowardly Roberts” t-shirts. We Americans market everything, including our disgruntlements.

There hasn’t been such a dither since Bill Clinton was caught telling one lie after another about his paramours. [What few on the Left ever conceded was that Clinton was disbarred for five years not because of his tendency to let his gonads rule his cortex, but for the plain fact that he lied under oath about his ungentlemanly behavior. It wasn’t the cad who got nailed; it was the prevaricator. But the Balance of Justice weighs slowly, and thus he wasn’t disbarred until he’d left the Oval Office.]

*   *   *   *   *   *   *   *   *   *   *   *   *   *   *

Chriss W. Street writes at Big Government, one of the pages at Breitbart’s website. We seldom quote a whole post, but Street’s sly question, “Did Justice Roberts Invalidate ObamaCare?” is a sterling effort. He tacks on a second decision the court made that day, so you can judge for yourself in the light cast by his comparison. Clever, indeed.

Many constitutional lawyers would disagree with his findings here, but we’ll have to wait for a new Supreme Court and another fifty years to pass before heads are cool enough to pose the question more academically:

Conservatives should be ecstatic that Supreme Court Chief Justice John Roberts sided with the four liberal Justices ruling the Affordable Care Act (ObamaCare) is constitutional as a tax, while siding with the four conservative Justices that the law is unconstitutional under the Commerce Clause.

Roberts just humiliated President Obama as a dishonest and contemptible politician, gutted the social welfare and regulatory state, and appears to have set up the entire ObamaCare law to be constitutionally invalidated.

Senator Barack Obama cemented his relationship with John Roberts by leading the opposition by liberal Senators to Roberts’ confirmation as Chief Justice of the Supreme Court. Obama said he did not trust Roberts’ political philosophy on Constitutional questions such as: “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.”

Obama, as a constitutional lawyer, [though not a very good one by all reports — D] knew Congress’s power to exercise control over individuals’ personal lives began through Supreme Court decisions during the President Franklin Roosevelt’s Administration that expanded the Constitution’s Commerce Clause far beyond its limited plain reading: “The Congress shall have Power”…”To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

President Obama may have stridently denied ObamaCare was a tax, but the legislation contains 21 new taxes that raise $800 billion over the next ten years.
And then Mr. Street does a “compare and contrast” switcheroo that plunks Justice Roberts’ decision right down where it belongs. Look at this legerdemain:

On the same day as the ObamaCare decision, the Court also ruled 6-3 that a law convicting a California politician named Xavier Alvarez for falsely claiming he won the Medal of Honor was unconstitutional.

Justice Kennedy wrote for the majority: “Though few might find (Alvarez’s) statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”

Having ruled dishonest boasting by politicians cannot be a crime, Roberts reasoned Obama’s dishonesty does not invalidate ObamaCare: “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.”
As several of the commentariat have noticed, Roberts is playing chess here while everyone else’s board is set up for checkers. Whatever.

[The emphasis below is mine -D]

Before 1937, Congressional efforts to pass legislation forcing unionization, minimum-wage laws, restrictions on agricultural planting and so forth were held unconstitutional by the Supreme Court as “not commerce.” After winning re-election in 1936, Franklin Roosevelt proposed the Judicial Procedures Reform Bill that would have given him the right to “pack” the Supreme Court in his favor by appointing six more Justices.

However, in what became known as “the switch in time that saved nine,” Justice Owen Roberts capitulated to Roosevelt’s threat to rig the Court by reversing his position and voting to expand the Commerce Clause to uphold minimum wage laws as regulating “commerce.” Four years later, an intimidated Court dispensed with the 10th Amendment to the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” as but a “truism” and not a limitation on Congressional power.

Thomas Jefferson warned the natural tendency is for government to grow like a poisonous vine; it sprouts through any gap. Giving Congress the power to freely regulate nearly everything means they can choose which restraints to place on the self-interest of one regulated party in order to provide advantages to another. Not only does this expansion of the Commerce Clause lead to the continual rise of the social welfare and regulatory state; it is the secret sauce that funds political crony capitalism.

The Roberts Opinion that ObamaCare is “not commerce” guts seventy-five years of the poisonous growth of the vines of government under the expanded Commerce Clause

In what may be Roberts’ ultimate legal slam-dunk of Obama, his ruling that the President and Congress passed a tax now threatens to constitutionally invalidate all of ObamaCare under Article 1, Section 7 of the Constitution: “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.”

Although the law originated and was narrowly passed in the House and then the Senate wrote and passed its own version of law, the House version hit a roadblock in the Senate. So Democrats, to avoid an even riskier vote in the House and because they reasoned the legislation wasn’t a tax bill, pulled the Senate version of ObamaCare and deemed it passed. Failing to originate the final bill in the House allows another constitutional challenge that the law is invalid.

Conservatives should praise John Roberts as a brilliant legal tactician who has revived the Original Intent of the Constitution’s Commerce Clause and vanquished Barack Obama’s quest for the forward expansion of a Living Constitution. At the still young age of 57, Chief Justice Roberts may have two more decades to honor the strict construction meaning of the Constitution of the United States.
Is Mr. Street’s reading of Justice Roberts’ ruling the right one? Or rather, given the slippery nature of the Law (as someone noted, “the Law is an ass”) is Roberts’ Rule the one which will prevail over time? I certainly hope that proves to be the case.

From your keyboard to God’s eyes, Mr. Street.


Cobra said...

There is no excuse for what Roberts did.
He was supposed to defend the constitution, not be a political animal.
This only proves we are alone in the fight against the autocratic, post-constitutional, federal government, in its entirety.

Anonymous said...

“With five votes around here you can do anything.” - Justice William Brennan

Justice Brennan was off by four.

Mr. Street's arguments as to what Justice Roberts has contended dismisses the possibility of someone more clever than Mr. Roberts being made Justice in the future. Clever will take you only so far before it starts to look like a Rube Goldberg contraption. Some one day in the future a Supreme Court ruling's majority opinion will be written in jabberwocky. The practical man will wonder at the meaning of it. The clever man will answer that it will become apparent on a 'need to know' basis.

An extra line should be added to the Justice's oath; I solemnly swear to foreswear cleverness.

George Pal

Mike said...

Clever arguments are no substitute for clarity of result. One concrete result of this decision is that we still don't know for certain whether or not Obamacare is constitutional.

Dymphna said...

@ Cobra--

Getting rid of all federalism is anarchy. The result would be even uglier and more harmful than the gorilla weighted on our chests now.

I want seriously configured deregulation, not blood in the streets. We can cut out the tumor without killing the body politic but it will take skill and wisdom.

Read what Roberts said.


Y'all could be right about "clever" but it could also be payback to the One. Only ol' Confucius Roberts knows for sure and he won't tell us until they publish his posthumous memoirs.

At any rate, Roberts' chastisement to the voters for having elected these folks is a point well-taken. In the 2010 mid-terms those same voters began a corrective course. I hope it continues into 2012.

I am looking forward to the book containing the arguments presented by each and every Justice. If I'm not mistaken, they all had something to say.

Walking back this legislative horror may prove Sisyphean. It's too early to tell. But at least it can be amended down to a manageable level if EVERY voter keeps his foot on the neck of his or her Congressional representative. It will require heroic measures by the electorate. In a just world, that shouldn't be necessary, but we live in a fallen one, and it is urgently required now.

It's late. Do you know where your Congressional rep is? Do you know WHO he/she is? Do you know the georgraphical limits of your gerrymandered Congressional District? Its population, racial make-up, and how many of your fellow citizens in that district vote??

We have a sharp learning curve to navigate here.

Anonymous said...

Roberts is a moral coward. The nitpicky argument about bill originating in the House will never see the light of day; even if it does Roberts wouldn't overturn it. As for repeal, show me one entitlement that was ever repealed. This is now the law of the land and we better bend over and take it with a smile.

Dymphna said...

@ anon 8:38--

Speak for yourself. I'm not bending over for anyone.

Anonymous said...

Roberts did not limit the Commerce clause, he simply didn't apply it. The misguided, approval seeking Chief also didn't limit the Taxation he inserted for Mandate. He left incomprehensible confusion in the wake of his act of judicial legerdemain. Insomuch as confused lawyers generally amuse, not in this case. One sixth of our economy as now been turned into a traveling sideshow.

To JLH, I thank you for your pithy satire, one I could never hope to match. I'll second, instead, with a quote from the Bard( aimed squarely at Roberts' contortions):
"I cannot too much muse such shapes, such gesture, and such sound expressing---Although they want the use of tongue---a kind of excellent dumb discourse"