29 Jun 2012

Roberts Opinion: Not So Much a Surrender As a Kind of Diabolical Strategy

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Paul Rahe makes a very interesting argument that John Roberts only appeared to cave. That, in reality, the Chief Justice was playing a diabolically clever long game strategy which involved permanently gutting Congressional illegitimate exploitation of the Commerce Clause while only apparently surrendering on Obamacare. Roberts, he contends, vastly enhanced the authority and immunity to liberal attacks of the Court, while dealing a deadly blow to the regulatory administrative state, and yet, hidden in the Tax Powers interpretation, astute commentators are able to identify aspects of the opinion boding very, very ill for Obamacare.

Most conservatives … suspect that John Roberts did not have the stomach to confront the President and his party. See, for example, Joel Pollak’s post Did Roberts Give in to Obama’s Bullying? Moreover, there is evidence that the opinion authored by Justice Scalia was originally a majority opinion. Roberts was forced to back off. His was an act of judicial cowardice. …

Or was it merely a recognition of the weakness of the judicial branch? … Roberts is very much concerned with sustaining the legitimacy and influence of the Court, and Obama and the Democrats have made it clear that they would regard a decision overturning Obamacare as a declaration of war.

There is, I am confident, more to it than this. In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.

At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. … Reynolds pointed to one crucial fact: [Emphasis added] Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.

[Another crucial detail] The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. [It is possible to] file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.

6 Feedbacks on "Roberts Opinion: Not So Much a Surrender As a Kind of Diabolical Strategy"


I predicted that the Supremes would not declare Obama care unconstitutional but rather come out with a ruling that made this abominable legislation far worse. In my lifetime this is what the Supremes have done. They either split so closely that no one really knows what is or is not constitutional or worse they cut the baby in half and throw out some part of a unconstitutional law while leaving the most egregious part intact. But this time the Supremes made everything worse.

If congress is able to do the best possible thing, that is to over turn all of Obamacare, the government will in the meantime have spent 100’s of billions to implement it (and pay off political cronies) that we will never get back. This while we are going bankrupt and unable to fund real needs. It will also have created at least four years of total confusion for employers, insurers and care givers causing some of them to go out of business and many of them to lose money and have to reduce services to American citizens. And lastly it will create a mish-mash of regulations, expired or retracted regulations, confused regulators and situations where patients die or who’s illness becomes worse simply because of the confusion this law and the repeal created.

If congress, the president and the Supremes were to have gotten together three years ago over cocktails and pondered how they could totally destroy the worlds best healthcare system it is doubtful that even the most devious mind could have come up with this legal morass and regulatory disaster.

The Supremes could have prevented most of this with a clean ruling that the entire bill was unconstitutional. It also would have set a clear precident limiting the federal power to control every aspect of our lives. But it appears that instead they preferred obfuscation, judicial legislation and constitutional destruction.

No Man

FTSC .!..




Well now. Maybe my prayers for John Roberts return to mental stability were not justified. This is very interesting.

All tax bills must originate in the House, and this is a huge tax.. hmmm.


Fooey on The Supreme Court


The restriction of the commerce clause is only Robert’s dicta, i.e. only an illusion. IIRC, the original bill originated in the House, then the Senate gutted it and replaced it with its version but keeping it origin in the House.


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