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Tag Archives: John Roberts

Why Don’t We Call it JohnRobertsCare?

As the chances for repealing Obamacare recede – with the states beginning to set up the Obamacare “health exchanges” and the putative leader of the Republicans, Speaker John Boehner calling the nationalization of health care the “law of the land” – I think it’s time to pay homage to the spineless jurisprudence of the man who allowed all this to happen, Chief Justice John Roberts.

Roberts did this, I believe, because he was tired of weeping late at night at the thought of President Obama and the Democrats villainizing his precious Supreme Court in the manner they do all their perceived enemies.

I think Obama intimidated the apparently fragile Mr. Roberts with his April 2 appearance in the Rose Garden – after the Court had heard the arguments but before a decision had been reached.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

Obama probably knew that Roberts had not yet decided, perhaps informed via Justice Elena Kagan, the former solicitor general who is close to many people in the White House. And he knew of Roberts’ precious regard for the Court.

This was accompanied by a drumbeat of Obama allies popping up on TV to suggest that the Supreme Court would enlist itself in the Vast Right Wing Conspiracy if it dared depose Obamacare.

Please join in the applause, won't you?

And lo and behold, Roberts actually changed his original opinion, in which he had sided with the Court’s conservatives to strike down the law, deciding to rewrite the measure in his own brain and consider the Obamacare’s penalty for non-compliance a tax.

Congress was explicit that the enforcement measure was a penalty, which even Roberts knew would be unconstitutional because it would amount to compelling commerce by forcing you to buy something.

But Congress has a clear right to tax. And so Roberts pretended it was a tax, and gave us Obamacare.

And now Roberts won’t have to defend the Court, and he can eat out at Washington restaurants without having other elite Washingtonians give him a look like he’s just another savage, dull-brained conservative.

And so, in honor of the Chief Justice, White House Dossier asks that – at least during the holiday season of thanks – we call the Socialization and eventual ruin of the nation’s health care system JohnRobertsCare.

Obama and Romney are Right: It’s Not a Tax

Many years ago, one of Virginia’s tax collectors pulled my car over. This agent, smartly dressed in a blue suit, had – I know, it’s frightening – a gun at his side, which he’d surely have used if I threw a violent fit about having to pay my taxes.

He had decided on the spot that, though I thought I had already paid all my taxes, I now owed the Commonwealth of Virgina an additional $125, and he gave me a little slip of paper to remind me. The slip said I would pay or he would see me in court.

Now, you wouldn’t really think of a Virginia State Trooper as a tax agent, would you? But many conservatives are applying the same logic to Obamacare, proposing that what is clearly a penalty – just like my speeding ticket was a penalty – is in fact a tax. The same conservatives, mind you, who would have celebrated a ruling against Obamacare under the Commerce Clause and never once suggested the law should be upheld because it was in fact a tax.

I understand the temptation to use this ruling to savage President Obama as the Great Tax Hiker on the Middle Class, the Supreme Hypocrite who promised not to raise taxes on those making less than $250,000 a year and then went ahead and did so in grand style. And I get the anger conservatives are directing at Mitt Romney for agreeing with Obama in order to protect his own legacy as a governor who authored Romneycare but didn’t raise taxes.

Obama of course is a hypocrite. The middle class will feel the lightening of its pockets from a penalty just as surely as it would from a tax.

But there is a distinction, and it’s a distinction with a difference. And it should matter greatly to conservatives, who are suddenly concurring with the Roberts decision in order to snag a campaign talking point – albeit admittedly good one – in exchange for grievous long term damage to their cause.

The law says you must do something – purchase health insurance – or incur a penalty. Roberts said this is impermissible under the Commerce Clause because it falls outside Congress’s right to regulate commerce – since not buying something isn’t commerce – but allowable under Congress’s Constitutional prerogative to assess taxes.

But this is equally pernicious, since it stipulates that Congress’s indisputable right to tax can NOW APPLY TO NOTHING.

Do nothing, get taxed.

What, you didn’t install solar panels in your home? Pay a tax. You didn’t buy at least one item of Native American handicraft last year? Pay a tax. You failed to purchase a slice of fish for your family once a week to help cut down on society’s health care costs? Pay a tax. Just a small one, it won’t hurt.

The opportunities for such mischief are endless.

Some argue that since Roberts has now “settled” the matter by declaring the penalty a tax, conservatives are within their rights to call it a tax too.

Which is about as logical as conservatives declaring there is a right to privacy somewhere between the lines of the Constitution that permits unlimited abortion.

Conservatives should not succumb to the very hypocrisy they claim to scorn. The individual mandate is a penalty, even if it hurts now to say so.

The Roadmap for Obamacare Repeal

Writing in the Wall Street Journal Former Bush National Economic Council Director Keith Hennessey provides a How-To Guide for the upcoming Eradicate & Replace campaign that Republicans will wage against Obamacare.

Hennessey, who blogs at keithhennessey.com, writes that a win by Mitt Romney and a simple majority of Republican senators – as well as a GOP House – will suffice for the repeal, something I’ve also written here at WHD. But Hennessey, who was also a top policy aide to former Senate Majority Leader Trent Lott (R-Miss.) and knows Capitol Hill procedures well, is specific about how this can be done.

Hennessey writes that most of the law can be repealed through the reconciliation process – which avoids a filibuster and requires only 50 votes for passage, instead of the usual 60 – and that the rest will then fall on its own:

Chief Justice John Roberts ruled that the financial penalty enforcing the individual mandate is within Congress’s constitutional power to “lay and collect Taxes,” and that the mandate and penalty are inextricably linked. This should suffice to enable repeal, through reconciliation, of both the individual and employer mandates, and their respective penalty taxes.

The state exchanges and insurance rules—”guaranteed issue,” which forces an insurer to sell a policy to someone who is already sick, and “community rating,” which severely limits the insurer’s right to charge that person a higher premium—are procedurally more difficult. Yet both are linked to the individual mandate, which increases taxes. Whether they can be repealed in a reconciliation bill will ultimately be decided by the Senate Parliamentarian.

Once the individual mandate is repealed, these popular insurance changes cannot stand by themselves. Without the mandate, people have every incentive to save on premiums and not buy insurance until they fall ill. This will send premiums through the roof for healthy people and, if the government clamps down on increased premiums, destroy private insurance companies. Those Republicans who say they favor legislated guaranteed-issue and community-rating requirements but oppose the mandate will be forced to acknowledge that all three must go.

He also offers a list of Republican alternatives to Obamacare, which the GOP in general has poorly articulated. Part of what Hennessey suggests are ways to increase individual responsibility for health insurance decisions, which are a cornerstone of reining in costs.

The Roberts decision is a calamity for conservatives and an outrage. But if the country twice elects a president who wants to Socialize a fifth of the economy, than the country has made its choice and must live with it.

Top Ten Reasons Roberts Voted to Uphold Obamacare

Nobody really understands the rationale for the vote of Chief Justice Roberts to uphold Obamacare. He said it was because the consequence for not having insurance was a tax, and Congress has a clear right to tax us. Except, the law is explicit that it’s not a tax.

Weird. Until now.

Through substantial payoffs to starving Supreme Court law clerks, White House Dossier has uncovered the actual reasons why Roberts sided with the liberals. Some of the reasons may surprise you, but I think they are all more comprehensible than the explanation he actually offered.

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1. Roberts was hoping the notoriety would get him a spot on Dancing with the Stars.

2. He was jealous of all the attention Justice Kennedy was getting.

3. Mistakenly used Constitution of Bolivia to decide the case.

4. Was still pissed off at Justice Thomas for putting a pubic hair in his soda.

5. Tired of hearing “Why are you such a damn conservative?” at Washington cocktail parties.

6. It was all just his way of flirting with Justice Ginsburg

7. Justice Sotomayor slipped something into the paella she cooked for him the night before oral arguments.

8. Stupidly consulted with Sarah Jessica Parker before making final decision.

9. Vote was misread due to hanging chad.

10. Thought he could take it back if he changed his vote within 90 days and had a receipt.

Did Obama Bully Roberts Into Upholding Obamacare?

Was Supreme Court John Roberts intimidated by President Obama and his allies into writing a startling, incomprehensible opinion that preserved Obama’s signature achievement as president?

Is it possible that the august corridors of the Supreme Court were trampled by Chicago-style political tactics, that the Constitution was shredded by the dog-eared playbook of bullying activist Saul Alinsky, the guiding light of Obama’s political operation?

There is no way to prove that Chief Justice John Roberts was intimidated into upholding Obamacare as constitutional, no way to conjure his thoughts. Even Roberts may not fully understand why he made the decision he did.

But there is evidence to suggest that the brewing outcry that the Court had become a political weapon run by a cabal of Republican legal hacks – the liberal Justices, who walk in lockstep, were under this theory clinging united to “principle” – weighed on Roberts, along with the likelihood that Obama would make this a theme of his reelection campaign.

Back on April 2, Obama helped ignite the recent focus by politicians and commentators on the “politicization” of the Supreme Court when he menaced:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.

Remarks that could have been written by a Brooklyn Wise Guy: I’m confident you’ll do the right thing, see?

All of this was theater. There’s nothing “unprecedented” or “extraordinary” about the Supreme Court overturning a law, and Obamacare was not passed by a “strong majority.” What was extraordinary was the sight of a president, standing in the Rose Garden, leaning on the Supreme Court.

Obama had inappropriately gone after the Court before, of course, criticizing the Justices to their faces during the 2010 State of the Union for having “reversed a century of law to open the floodgates for special interests” in the Citizens United case and calling on Congress to “pass a bill that helps to right this wrong.”

Is there anyone who seriously doubts that Obama would have made denigrating the Supreme Court – and promoting himself to fix it with second term appointments – a central plank of his campaign?

The first suggestion that Roberts may have been influenced by all this is that it appears he may have changed his mind after initially supporting the four conservatives who voted to strike down Obamacare.

The Wall Street Journal writes today:

One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind . . .

The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties.

And Roberts, indeed, would be uniquely susceptible to such pressure.

Roberts is a creature of Washington and likely less immune than some of the other Justices to its Zeitgeist. He came to Washington 30 years ago, after graduating from Harvard Law School, and has been here ever since.

But Roberts is also a creature of the Supreme Court.

He’s been Chief Justice now for almost seven years. Nut what’s less well known is that he basically started his career at the Court, clerking for then-Associate Justice William Rehnquist from 1981-1982. He worked for George H.W. Bush as Principal Deputy Solicitor General from 1989-1993. Afterward, in private practice, he argued some 39 cases before the Supreme Court.

The chatter in the last 24 hours that Roberts may have been seeking to protect the Court where he’s toiled for a major portion of his professional life makes sense.

Especially when you consider his opinion in Obamacare case.

Roberts imagined passages in the law that weren’t there. He called the penalty for failing to sign up for Obamacare a tax, when it expressly was not a tax. No lower court accepted the argument that it was. Even Obama’s Solicitor General spent little time trying to argue this angle.

The Chief Justice’s opinion is inexplicable in the absence of some other external factor intruding on his thinking. And that external factor may well have been the president and the mobs who threatened to trash Roberts’ Court if it killed their beloved Obamacare.

It’s possible the Supreme Court didn’t rule. The mob ruled.