Hmmm… Maybe He’s On To Something Here…

His Imperial Majesty has already rejected the initial, fevered attempts by some on our side to extract at least half a yummy, only half-digested peanut from the giant, steaming pile of shit that was Roberts’ ACA ruling, and we have certainly not changed our opinion of his creative post editing of Congressional wording so he could deem it constitutional (and thus turning the Judiciary into the Legislative branch as well), nor the disastrous consequences for our Republic if OgabeCare is allowed to stand until its implementation in 2014, but this fellow’s particular case for why the ruling might not be a complete loss stands out among the others.

Mostly because the previous “glass half full” bleats were wholly non-specific and didn’t sound particularly well thought through. Sean Trende is basically making the same argument, but he’s certainly making an effort in arguing his point, particularly on the specifics.

Merits a read, in our opinion.

Of course, we do realize that we are, subconsciously, highly motivated when it comes to finding something to smile about after Thursday and we may, therefore, indeed we probably are not as critical as we ought to be (and more prone to irrational optimism), but there is something about his argument that at least gives us pause.

Your thoughts?

UPDATE: And another one, even more specific.


  1. 1
    LC Subotai Bahadur, Lord Pao An growls and barks:

    My Liege,

    I am afraid that I do not agree with either of the articles:

    1) The law still has a good chance of not being implemented.

    And it has an even better chance that it will. There is no surety that there will be honest elections or that Romney will be elected, or that he has a testosterone count high enough to try to repeal. Further, there is no assurance at all [with the same caveat about honesty] that a) the Republicans will take the Senate and b) that when push comes to shove the same half dozen “Republican” senators who can be depended upon to vote with the Democrats on anything critical will not do their usual Quisling act. If Trende is right in his reasoning, Roberts was playing dice with the future of the country, our children, and the Constitution in a game that stands a good chance of being rigged.

    2) Doctrinally, The Federalist Society got everything it wanted.

    Any restrictions on the Commerce Clause were more than outweighed by the pernicious doctrine that tax/prison compulsion can be used to compel in realms where the law and Constitution were not previously allowed to reach. And by making the text of the Constitution not necessarily applicable to decisions, there is no guarantee, or even any indication, that he will not pull some new constitutional horror from under his robes in conjunction with the Enemy.

    3) The chief justice has built up some political capital. and This matters in the long run — a lot.

    He did it to get good press and compliments from the Enemy, apparently under the assumption that a) they will give them to anyone to the right of Trotsky, and b) that they would let some detail like his rolling over and playing dead prevent them from characterizing him/the Court as worse than a cannibal child molester the first time a case they consider important comes up? He has just shown that he values good press over the Constitution, and proved he has not been watching for the last couple of generations.

    4) It made taxation the panacea for constitutional questions

    In other words, they can call anything taxed and limit/eliminate constitutional rights at will. With the express sanction and urging of the Supreme Court. Every time the Enemy gets a majority in Congress, they can put the whole Constitution at risk with a 50% +1 vote.

    5) This deflates Occupy Wall Street’s biggest cause

    Somebody is pulling my lariat. #Occupy is the creation of Organizing for Obama, and takes its orders directly from the White House political operation. There is NOTHING that Roberts, the Court, or the Institutional Republicans could do short of mass ritual seppuku that will shut that group of barking Chiroptera Lunarii up. If not Citizens United, then it will be something else. Facts don’t matter to them. The Wisconsin moonbats were bitching about Citizens United all through the governor’s recall. One small problem. Citizens United does not apply at all to state elections.

    6) Mitt Romney now will have a much easier time defeating Barack Obama

    Seriously. I mean freaking seriously! Do we really want to approve the precedent that the Supreme Court should base its rulings on the political party it wants to win instead of the Constitution. Keeping in mind that the Left is going to be in the ascendent someday on the Court, if it is not already. Even the authors of the second piece characterize it as a high risk gambit.

    I will note this from a commenter at HOT AIR [no, not me]:

    All of this analysis overlooks one important point…Roberts could have had all of those same points in his majority opinion. He could have scuttled the mandate, and told Congress to rewrite it as a tax if they want it to pass Constitutional muster. But, he chose for some unexplained reason, to rewrite it for them.
    That’s why nothing even remotely good should be read into his decision or bestowed upon his reasoning.

    This is not some deep ninja-Jedi Master multi-level Glassperlenspiel. Roberts had to work to give the Enemy a victory. In fact the Enemy now functionally controls the Supreme Court, and we have to make that assumption for the generational foreseeable future, if courts are still part of the equation in that future; which they may not be after November. He may have, as there is some indication, been threatened or blackmailed. But he has been turned. This is not congenial and collegial politics. It is tradecraft. And what assumptions do you make under tradecraft if you think someone has been turned.

    This was a life/career/character defining moment. At the last minute, apparently, he changed sides and locked in his definition. And our children and grandchildren may be fighting [literally, not politically] to repair what he has wrought.

    I would add this thought from Drew M at ACE OF SPADES:

    Dear GOP,

    This is your last chance. If you blow this, I’m out and you need to be destroyed.

    What is it? Repeal ObamaCare on Day 1. Don’t worry about replace, don’t worry about anything else. We will do everything we have to drag your sorry asses over the line this fall, including electing Mitt Fucking Romney.

    In return this is what you will do:

    Instead of adjourning for pictures and tea and cake to celebrate getting your pathetic asses elected to 2 or 6 years on the government teet, you will immediately pass a one line bill that says, “The Patient Protection and Affordable Care Act (and whatever statute number has to be included) is hereby repealed.”

    That’s it. Nothing more, nothing less.

    Since Congress meets before Inauguration Day, Obama will still be President. Simply hold the legislation at the desk so the 10 day pocket veto clock doesn’t start. If other parliamentary BS is needed, just do it.

    Then as soon as Mitt takes the oath of office, before his speech no one will care or remember, walk the bill up to him at the podium to sign.

    If this does not happen, the GOP must be destroyed and a new party built to replace it. We’ve tried the carrot approach (votes, money, volunteers) to change your behavior. Now it’s time to show you the stick.

    No more, “oh the other guys are worse” scare tactics. That might be true but it doesn’t mean you are any good.

    This is your one job, do it or join the Whig Party in the dustbin of history.

    By being turned and blatantly aiding the enemy in attacking the Constitution, Roberts has angered and lessened the attachment of TEA Party/Patriots/Conservatives to the only “opposition” Obama has BEFORE the election. I am all for dismantling the Institutional Republicans, but this close before the election is not the time. After accounting for hangover recovery time if the Tyrant is overthrown, November 10 is a good enough time to start. Hmm. That kind of cancels #6 above.

    LC Subotai Bahadur, Lord Pao An

  2. 2
    Emperor Misha I growls and barks:

    I haven’t changed my opinion that this should never have happened in the first place, it’s a HUGE overreach by Roberts no matter how anybody paints it, and I know only too well that, even if we assume the purest and most brilliant of intentions behind it, it’s still an enormous gamble with our rights, not to mention that there are a whole bunch of already unlikely things that have to come true within the next year or so that are not at all certain to come true.

    I would have gone with joining, once again I cannot believe this, Justice FUCKING KENNEDY in just overturning the whole damn thing and taken it from there. A bird in the hand etc. We do not in the slightest disagree.

    However, if that had been the case, if he had actually done his job as he should have as a Supreme Court Justice, we would NOT have had a clear line in the sand stating that the Commerce Clause can NOT force people to engage in activity (as in “creating commerce so you can regulate it”) and we would NOT have had a precedent stating that federal funds cannot be used to coerce states into doing whatever the fuck the Fed says they should do (Medicare expansion part, with threat to withdraw ALL Medicare funding if the states do not agree to the expansion in toto), and we would NOT have four communist Supreme Court justices tricked into signing off on those two because they were too focused on the immediate prize of upholding a law that can still be killed through other means.

    Again: I would STILL rather that he’d done his job and not committed the obvious crime of rewriting law to allow him to uphold it, but I’m also not blind to recognizing that he may have just, deliberately or accidentally, thrown the commie “justices” into a briar patch. My problem here is, as is yours if I understand you correctly, that for this to be a win in the Long Game, a lot of things not at all certain at this point will have to happen, first and foremost of which is that Mittens Obamneycare will have to remember his promises after January 21st, which I’m not at ALL sanguine about.

    So yes, I agree with you that this was a risky and very likely potentially disastrous ploy, even if we assume that Roberts is anything but a cocksucking pansy, and I’m not in the least happy about it.

    But I’m also not blind to the possibilities that it opens up to us, if only we keep the pressure up. IF we can hold Mittens to his promise, IF we can force the hopefully Republican Senate to use reconciliation to repeal (an option that is now not a hypothetical, but a guaranteed to work approach since the Mandate has been deemed a “tax”), then we can achieve what we should have achieved yesterday AND have achieved a whole heckuva lot more.

    But it’s still more of a gamble than I would have ever gone for, and it still doesn’t change the fact that Roberts overreached by rewriting a law to make it pass constitutional muster. That alone made it unconstitutional as the Supreme Court does not have that power.

    As to the “if they can call it a tax, then everything’s permissible”, I agree with you, but that particular battle was lost long ago. It wasn’t even in contention here. The most obvious example that comes to mind is the child tax credit. You can say all day long that it’s what it was intended to be, an encouragement for people to have children without which a nation won’t survive for more than a generation or two, but it’s dead easy to make the argument that it amounts to a tax hike on people who choose NOT to have children.

    It’s a non-starter, unless we’re to have a different argument. Roberts WAS right, along with the rest of the Court who didn’t disagree with him one bit, that the government can tax non-compliance. They just can’t penalize it, which is a different kettle of fish even if it sounds the same to you and me. To “penalize” means calling an act or non-act “unlawful”, which would be the same thing as saying that not having x number of children is illegal, but to bestow privileges in the tax code upon individuals who do things deemed to be advantageous is not the same thing, or every single deduction under the tax code would be unconstitutional as it unfairly penalizes those who aren’t eligible for the deduction.

    But he wasn’t right in arrogating unto himself the power to rewrite written law so it would pass muster for him.

  3. 3
    Mark12A growls and barks:

    I guess Roberts didn’t read that part in the Constitution that states that legislation that levies taxes must initiate in the House.

  4. 4
    Cannon Fodder growls and barks:

    The thing I liked is the idea that it is now constitutional, but nullified at the same time. The mandate is now a tax. The government was told that the commerce clause can’t be used to require people to purchase ANYTHING. States have the right to refuse to implement this monstrosity. The fed can no longer threaten to take away medicaid money if the states refuse to implement this p.o.s.

    Thinking about it, this really does affirm states rights. Even though the Fed has made it law, the states don’t have to swallow the nasty ObamaCare pill if they don’t want to. Congress rammed the theory down our throats, but the states can spit the pill right back out.

  5. 5

    I’ve seen desperate attempts to suck the corn out of the diarrhea in the toilet bowl that is this fucking mess. While there is some limiting language of the commerce clause, which is a tiny little small positive, the fact of the matter is that now the legisleeches have the power to compel us to do anything by threatening a penalty, as long as they call it a tax. It’s already bad enough that they take every opportunity to limit our behaviors by taxing things they don’t like, such as cigarettes, etc. But now, they have the power to tax us into poverty if we don’t purchase things that are good for us.

    Any way you slice it, Roberts affirmed these bastards’ authority to regulate the behavior of regular citizens via taxation. A pox upon his fucking house!

  6. 6
    BigDogg growls and barks:

    Someone explain to me just how in the fuck this is a victory … here’s what the decision amounts to: Congress cannot regulate individual economic inactivity, but Congress can tax individual economic inactivity.

    Where is the fucking difference??? This is semantics people, and the pollyannas trying to spin this as a victory for the commerce clause have their collective heads up their asses.

    Wake the fuck up … this decision didn’t strengthen the Constitution, it hobbled even more than it already has been.

    Keep patting yourselves on the back for looking for the silver lining when the Congress is taxing you for not having solar panels on your house, for not attending government run pilates classes, for not going to your local Federal care clinic for your monthly weigh-in ….

    Yay for us!

  7. 7
    LC hilljohnny growls and barks:

    if the state you live in rejects Obamacare can you still be taxed?

  8. 8
    LC Gregory growls and barks:

    Folks, remember there are still more challenges to the law out there – attacking it on different grounds.

    1. Congress now only needs 50 Senators plus a VP to give it the boot – as a tax, it can now be killed in conference. No Filibuster.

    2. States can opt out. I HAVE to believe that my beloved Olde Dominion will be among the first to do so, insofar as our own Ken Cuccinelli was the original AG to go after the monstrosity. Enough states opt out and the thing is DEAD.

    3. Taxes have to originate in the House. BigDogg, the examples you cited would almost certainly have to be levied by, say, the EPA. No good. Of course, if they could get away with that, they wouldn’t need any help from this ruling to do so.

    4. The Tea Party is Fired Up now – to put it VERY mildly. And much of the Left is somewhat defanged, insofar as they planned on the Court tossing out the Mandate only and using that as evidence of “OH, NO!!!! THE AWFUL RETHUGLICANS ARE TAKING AWAY OUR DEMOCRACY THROUGH THE COURT!!!!!” in order to get pre-election mojo.

    Remember, folks – It’s A Long Ball Game. The Left went 70 years trying to get nationalized health care. Are we committed to any less in defense of our nation and liberties? I’ve been fighting full-time in public policy, usually for subsistence wages at best, for 17 years. WAAAAYYY too soon to throw in the towel!

  9. 9
    LC Gregory growls and barks:

    if the state you live in rejects Obamacare can you still be taxed?


  10. 10
    LC hilljohnny growls and barks:

    on the subject of taxing not doing something, how long until Obama wants to tax churchs for not paying for abortions. and no, they are not exempt from all taxes.
    or a state government decides to tax abortions?
    we now have property taxes on cars, how soon will they try to tax the guns we own?

  11. 11
    Terrapod growls and barks:

    I read the same article . The proof of the pudding is that what Roberts did forced Obama and the Donks to admit it was a tax if they want to go foreward. This in turn focuses the entire issue on how to fund it by raising taxes four months before the election. If the R party does not make the most of this and if the electorate remains brain dead, then we are sunk, but let us work on making damned sure everone sees it as a HUGE tax coming, that and the sunsetting of the Bush cuts should be enough to shake all but the 20% mindless leftist voters of the population.

    I for one will keep working on everyone in my sphere to drop their inhibitions and pull the R lever. We can worry about pressuring Romney after he wins and conservatives sweep the house and senate. No other way folks, if this does not work there is the box of last resort.

  12. 12
  13. 13

    With this decision, just wait until Congress decides to tax your ammo per bullet to offset the costs of the victims of gun violence.

    Fuck that!

  14. 14
    Mark12A growls and barks:

    That may all be true. I guess I’ll just continue to hate everything Obama stands for. And Romney is hardly my candidate. He’s just the one who’s not a communist. The lesser of two evils.

  15. 15
    LC Subotai Bahadur, Lord Pao An growls and barks:

    This is one of the better explanations of the situation Roberts left us in when he turned. From another commenter at BELMONT CLUB:

    69. Daedalus Mugged

    What the Roberts decision essentially said that the government has the power to tax, and that power to tax extends to behavior. Not merely to actions you take, but also to actions you fail to take (inaction). The government does not have the power to compel you to do something (at point of a bayonet) but it does have the power to require you to do something, and if you fail to do so, to tax you, and if you fail to pay the tax, throw you in prison (at the point of a bayonet). There was no limiting principal applied to this logic, only that it be deemed appropriate by the other two branches of government. Roberts said, “It is not our job to protect the people from the consequences of their political choices.” The power to tax can be used to compel behavior.

    In that vein, let me propose a hypothetical and determine if it passes Constitutional muster under the Roberts decision. This bill is meant to address the general welfare issues caused by certain uppity members of the citizenry failure to ‘respect my authoritay!’ of the federal government. The contents of this hypothetical bill is that each citizen shall travel to (interstate commerce!) and present themselves in person upon the Mall in DC, upon their birthday and no later than the time of their birth, where they will be ‘mandated’ to lick the boots of their Representative, either of their Senators, the President, Vice President, or any of their designees. For avoidance of doubt, the boot licking does not require the presence of their esteemed personages or designees; they can merely drop off the footwear of their choice, in any state of cleanliness or soiling, and require citizens to lick them. However, this is not strictly a mandate, as citizens can opt out of their boot licking obligations, and pay a penalty (don’t even have to actually call it a tax!) of $10,000 (or $1mm, or an additional 50% of income).

    This act can be referred to as the Universal Boot Licking Obligation in Washington of the United States, also known by its acronym, U BLOW US. While this may be unwise law, would the interpretation of our Constitution by our supreme court protect us from this idiocy by our political class? Per the logic of the Roberts decision, this would pass Constitutional muster. Anyone whose jurisprudence would find that law Constitutional ought to be intimately familiarized with the American political tradition of tar and feathers, if not lamp post decorating, and there are at least 5 candidates.

    They can’t only make us eat our broccoli, they can make us lick their boots. On a bright note, the President can choose to enforce or not enforce the law, or issue waivers to anyone he so chooses, such as people who donate sufficiently, or even cry believably enough at his daddy’s funeral.

    The Executive branch is a malign tyrant. The Legislative branch is made of of 1/2 tyrant’s lackeys and 1/2 careerist fops who view the country’s people as more of a threat than their good friends the lackeys. The Judicial branch has just formally joined the Executive. And the elections process is in deep doubt both as to whether they will take place at all, and whether the process of the election and vote counting will be closer to Jefferson or Stalin :

    You know, comrades,” says Stalin, “that I think in regard to this: I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how. —Boris Bazhanov’s Memoirs of Stalin’s Former Secretary, published in 1992

    On a related note, yesterday the House voted a Contempt charge [both legally and morally richly deserved] against Attorney General Holder. His response was, literally, to go to Disney World. We know that he will not be impeached or removed under any circumstances because a) the Democrats in the Senate would protect him without reservation even if while in Florida he indulged in their latest drug fad [“bath salts”] and under its influence started killing and eating the locals alive as other users have done, and b) the pResident would block it by Executive Order, secure in the knowledge that in a world where the Democrats prevent any budget being passed, the House can do nothing. The other reason for the Contempt charge was to bring judicial process into play to compel the production of the subpoenaed documents.

    After yesterday, does anyone here have any real confidence that any part of the Federal Judiciary will rule against the Democrats, regardless of the law or evidence? Secondly, yesterday I cited the Rasmussen poll of a couple of days ago that showed that only 22% of the country believed that our government had “the consent of the governed” as described in the Declaration. After yesterday, is that number going up or down? Thirdly, how low can that number go before a tipping point is reached?

    And only the Great Blue Sky Tengri Nor knows what the outcome will be.

    LC Subotai Bahadur, Lord Pao An

  16. 16

    I still think Roberts sacrificed himself with this move to piss off enough people to get off their asses and vote. :em03:

  17. 17
    Physics Geek growls and barks:


    I would like to say that even if Roberts is playing 11-D chess -um, I don’t think so- to achieve some future political victory, how you get there matters. Process matters. And the law that Roberts signed off on was NOT the law in front of him. “Oh, I see that it’s missing the word ‘tax’, so I’ll just add that in for you. Fixed.”

    Jeff Goldstein, I think, offers some of the best analysis here and here.

  18. 18
    readerjp growls and barks:

    Here’s another explanation I came across – vastly different from the learned discourses above, and one which at first sounds laughable.

    Talk radio host Michael Savage told his listeners today that the use of mind-altering drugs to treat seizures could explain why Bush-appointed Chief Justice John Roberts upheld Obamacare today along with four liberal colleagues.

    The physician urged Savage to check out Roberts’ history with epilepsy, referring him to a New York Times report in August 2007. The article said that after Roberts suffered a seizure, doctors were weighing whether to treat him with powerful drugs with “troubling side effects,” including mental slowing and forgetfulness.

    Roberts had suffered a seizure 14 years earlier. The seizures meet the criteria for epilepsy, the Times report said, because they were “unprovoked,” meaning that they were not caused by a head injury, a drug reaction or another known factor.

    The neurologist told Savage that Roberts’ cognition could be affected by taking epilepsy medicine.

    “if you look at Roberts’ writings you can see the cognitive disassociation in what he is saying.”

    “Roberts has no logic in what he said,” Savage asserted.

    “He said the law is a tax, but if the law wasn’t written as a tax, how can he say it’s taxation?”

    I don’t know if it’s feasible or not, just offering it up.

  19. 19
    Emperor Misha I growls and barks:

    Listen, I’m not trying to turn this turd of a disaster into a “victory”, because it isn’t. My opinion of ObamaTaxCare hasn’t changed inasmuch as I know that it will turn healthcare into the same unmitigated disaster, long term, as it is everywhere ELSE in the world it has been tried.

    It has to go, one way or another, or we may actually finally see people going to Cuba for healthcare, as idiot commie leftists have been fantasizing about for years.

    All I am doing here is trying to find out what the rest of the decision means and whether it’s all bad, all good or some combination of both. But no matter what, I’d gladly exchange whatever good there might be for the overturning of the whole monstrosity, because I’m not in the least bit confident that Roberts’ gamble, if that’s even what he had in mind, is likely to turn out well for all of us.

    And, of course, this:


    I would like to say that even if Roberts is playing 11-D chess -um, I don’t think so- to achieve some future political victory, how you get there matters. Process matters. And the law that Roberts signed off on was NOT the law in front of him. “Oh, I see that it’s missing the word ‘tax’, so I’ll just add that in for you. Fixed.”

    Absolutely agree in every way. As I said in my comment further up:

    I would STILL rather that he’d done his job and not committed the obvious crime of rewriting law to allow him to uphold it,

    The only option open to him the moment he reached the conclusion that the Mandate + Penalty wasn’t constitutional, he should have struck the whole thing and sent it back to the Legislature so they could clean up their mess. Saying “oh, but I think what you mean to say is this, which is perfectly constitutional, so let me just change the wording for you so I can uphold” is a gross violation of procedure AS WELL AS the Court arrogating a power to themselves that they don’t have, which is the power to write laws.

    For that alone, he and his fellow liberals should be impeached and removed, but that’s not likely to happen in today’s United States. Actions simply do not have consequences anymore, unless you’re a peasant refusing to tug your forelock as your “betters” pass by.

    BigDogg says:

    Keep patting yourselves on the back for looking for the silver lining when the Congress is taxing you for not having solar panels on your house,

    I hear ya, BigDogg, but they already are doing just that and have been for quite some time. Solar panels? If you have them, you get a tax deduction. That’s the same as adding a tax to those who don’t have them. They’re paying more in taxes than the ones who have solar panels, aren’t they?

    Child tax credits? Same thing. Now, I’m in favor of them, and that’s not because I have kids, it’s because I recognize that society has a vested interest in having future generations, and encouraging the production of them is certainly a valid way of achieving that goal. But I could never, ever honestly argue that it doesn’t amount to an added tax on people who don’t have children. They’re paying more than I am, aren’t they?

    So I’m saying that this “power to tax inactivity” has been around for a looong time. The only reason it hasn’t been used even more is that it’s politically inconvenient for bills to have the words “tax increase” in them, which is exactly why the Ogabe Junta called the Mandate Tax a “penalty” instead.

    Roberts was correct in pointing that out, and the entire Court agreed with him. What he WASN’T correct in doing was to rewrite the law after the fact so it would pass muster.

  20. 20
  21. 21
    LC Light29ID growls and barks:

    Either a Constitutional Convention or a Convention of Succession. Those are the only two remedies left to the States to throw off the yoke of this tyrannical government then, after they starve, freeze and are disease ridden because the states that produced products are gone they can beg for the us to come back ON OUR TERMS. We have found the Mail box, the Soap box, Ballot Box and now the Jury box will not protect us.

  22. 22
    LC LOBO growls and barks:

    LC Light29ID says:

    Either a Constitutional Convention or a Convention of Succession. Those are the only two remedies left to the States to throw off the yoke of this tyrannical government then, after they starve, freeze and are disease ridden because the states that produced products are gone they can beg for the us to come back ON OUR TERMS. We have found the Mail box, the Soap box, Ballot Box and now the Jury box will not protect us.

    Here’s to the *once again* Republic of Texas.

  23. 23

    LC Gregory @ #:
    They must’ve seen the spatter on the wall. After a quick regroup,, they insist it’s NOT a tax!

  24. 24

    LC LOBO says:

    Here’s to the *once again* Republic of Texas.

    Hooah! I can load all the shit I desperately need in my truck, and be there in ten minutes.

  25. 25
    LC Xystus growls and barks:

    You obviously have ZERO understanding of what a “communist” is. On top of that, you really need to quit letting other people do your thinking for you.

    Just let DJ do it for you!