Saturday, June 30, 2012

Maybe the Light at the End of the Tunnel... an oncoming train, after all.  <Sigh>  I just KNEW I shouldn't have taken vacation.

Don't get me wrong,  I had a great time.  I unplugged completely from the 24hr news cycle.  We went fishing, both fresh and offshore deep sea.  We spent a day at Busch Gardens park in Tampa.  We went down to the Hard Rock Casino in Hollywood, FL and actually made money!  In addition, we went out to eat in two very nice restaurants (one Italian and the other a steakhouse).  An entire week with no depressing news, no politics, nothing but good friends and good times.  And then......

Let me get this straight.  The usual swing vote, Justice Kennedy, surprised everyone with his vote aligning with the conservative wing of the Court.  He even went so far as to claim that the ACA was unconstitutional in it's entirety!  No one saw that coming.  Then, in an even more startling development, "conservative" Chief Justice John Roberts engages in sophistry and semantic exercises to create a basis for the court to uphold the ACA by classifying it as a tax, not a mandate. (Which the majority ruled was an unconstitutional application of the Commerce Clause).

I should've stayed in Florida and buried myself deeper in the sand.  Has the whole world gone crazy in the past seven days?  How did the conservatives gain Kennedy and lose Roberts? No one is going to be surprised that I disagree vehemently with the ruling.  It seems to me that Chief Justice Roberts went out of his way to re-interpret the structure of the ACA in order to find a basis for allowing the law to move forward.

Of course, Progressives are hailing the ruling as a "triumph of law over partisanship" and lauding Roberts as a hero (these are the same people who tried to prevent his confirmation by claiming, among other things, that Roberts was a "radical right-wing extremist" appointed by the evil George W. Bush).  Presumably, they'd be just as willing to heap praises on him if the ruling had gone the other way?  After all, Progressives are never motivated by partisanship or ideological beliefs; all they ever want is to simply see that the rule of law is upheld.


The traditional tendency of the Court to defer to congress notwithstanding, this measure fails on more than one point.  The early majority decision was that the President and the Congress attempted to improperly use the Commerce Clause to support the concept of the individual mandate that every citizen had to buy insurance or be faced with a fine.  Then, Chief Justice Roberts moved to side with the minority in finding that the measure was constitutional if the penalty for not purchasing health insurance was considered as a tax.  In the decision, he wrote that regarding the penalty as a tax placed the measure within the scope of congressional authority to levy and collect taxes, thus making it constitutional.

This completely ignores the fact that the administration has argued for the last two years that it was NOT a tax, and that to interpret it as such was, to quote Obama to George Stephanopolous(sp?) "reaching" and "requiring people to be responsible for their own healthcare costs was most definitely not a tax".  It's clear that if the ACA was offered to the people as semi-nationalized healthcare to be paid for by a huge new tax levy it would've been DOA.  Instead, it was pushed through using  a toxic combination of very questionable legislative procedures, intimidation and/or false promises (remember the promise that there would be "no  federal payments for abortions"?) and de facto bribes such as the "Louisiana Purchase" & the "Cornhusker Kickback".  Any of these should have been sufficient to end the bill's chances of ever becoming law.

Obama and the Democrat controlled congress knowingly perpetrated a fraud on the American people first when they promoted the bill as not being a tax; second, when they passed it through "reconciliation" instead of the usual legislative process; and finally, when they argued in their brief to the SCOTUS that it wasn't really a mandate, but a tax after all.

It's well established that, as a matter of law, contracts and agreements entered into under duress or as a result of misrepresentation or fraud on the part of one of the parties are to be held null and void and unenforceable.  Apparently, it was either out of the scope of the consideration of the Court, or the petitioners neglected that possible avenue of legal challenge.

If we are to prevent this obscenity from becoming irreversible we need to accomplish 5 things:

1.  Defeat Obama.  If we don't win the election, the country loses.
2.  Hold the House and take back the Senate.  Repeal has no chance if Harry Reid is still in charge of the Senate and able to prevent any votes to repeal the ACA.
3.  Stay in touch with our representatives after the election and make sure they follow through on their pre-election promises.
4.  Change the leadership.  We need to encourage the conservative members of the House and Senate to hold new elections and to elevate true conservative leaders, not the semi-Progressives we have now.
5.  Finally, we need to keep on Romney and demand that he follow through on his many promises to "repeal Obamacare on Day One."  If we let him revert to being a politician, he'll find "reasons" to keep much of the structure of the ACA in place.  Giving out waivers to the states isn't nearly enough.  As long as the structure remains in place, it's a continuing threat to individual liberty and freedom; an open door to encroachment by government into how we live our daily lives.


  1. It is interesting reasoning in the actual text of the majority opinion. I would encourage everyone to read it:

    It is interesting that the Court feels, and has long felt, that they have an obligation to uphold legislation if they can "reasonably" do so, even if they use an argument other than that of the government to do so.

    The essentially take the position of "if it looks like a duck, walks like a duck, sounds like a duck, then it is a duck" philosophy. In this case, the government calling it a penalty doesn't change the fact that it is, in their view, a tax. And I don't know as I disagree with them. I think it can be reasonably construed as some sort of excise or impost, which is allowed by the Constitution.

    For folks who are upset by this, and I pretty much am, you have to stop and ask yourself how you feel about all the other things in the tax code that basically do the same thing, though I think most tend to reward behavior rather than penalize non-behavior. All the credits and deductions (i.e. student loan interest deduction, mortgage interest deduction, green energy credits etc) that are essentially there to encourage behavior are on the same footing as the mandate penalty, in my view. If you don't like the mandate penalty, then you probably ought to be against all the other credits as well.

    A couple quotes from the majority opinion by Justice Roberts caught my eye. The second one goes directly to the points you made at the end of your post Larry:
    "The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

    "But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."

  2. Something you might find interesting:

  3. I get your point referencing the Court's tendency to uphold legislation, I just don't think they have any obligation to go out of their way to do so. The primary obligation of the Court is fidelity to the Constitution, as was held in Marbury v Madison. (Dred Scott was also overturned by SCOTUS after being passed into law)

    As far as rewarding or penalizing behavior through the tax code, I can't find any authority for that in the Constitution's provision for the power to levy taxes. The tax code should ideally be both blind to individual circumstances and uniform in application. Government has no business trying to pick winners and losers, especially since such decisions are ultimately made according to ideology and/or political considerations.

    As an aside, I also find it interesting that Chief Justice Roberts felt no similar obligation to search for a way to uphold the Arizona illegal immigration law (SB1070). A law that had great majority support of the citizenry, followed the Federal law point for point, and was a desperate response to the dereliction of duty by the Obama administration's refusal to enforce it's own laws.

    One quote I did find interesting from Justice Roberts: [paraphrased] "It's not the job of the Court to protect the people from the consequences of their political choices". In that, I do agree with him. Elections have consequences, sometimes even for those who made right choice.

    November will tell the tale, but I wonder how this Court would treat any legislation to repeal if/when it was inevitably challenged. Would they defer to the will of the people, as displayed by a properly executed exercise of Congress' legislative authority? Or will they strike down the repeal legislation as an unconstitutional violation of "civil rights" (ie., rights newly bestowed by the government)?