Crossing
the Rubicon
____________________________
In
B.C. 49, the River Rubicon was crossed by Julius Caesar and his army, involving him in a civil war. The crossing of the Rubicon became a reference
as a “point of no return,” and resulted in Caesar becoming the first emperor of
Rome and installing a new system of government.
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Much of the nation
(according to polls over 60% of citizens oppose Obama care) remains stunned at
the June 28 SCOTUS decision on the constitutionality of the individual mandate
for national health care. And for good
reason, the conventional wisdom was that the SCOTUS would render a 5-4 decision
striking down, at a minimum, the mandatory provision of Obama care, along the
lines of the Courts conservative justices – Antonin Scalia, Clarence Thomas, Samuel
Alito, John Roberts, with moderate Anthony Kennedy casting the swing vote. Au contraire to conventional wisdom and wisdom
in general, as the SCOTUS delivered its supremely stupefying stunner.
Perhaps it is a fitting climax to this theatre of
the absurd play, known as the Patient Protection and Affordable Care Act. Shamelessly
euphemistic and innocuously named, the insidious ACA has from its inception has
been wrapped in deceit and prevarication, the hallmark legacy of seemingly all
the policies of this administration.
Why, just its name is mendacious - neither “Affordable” nor an “Act”,
it’s the Unaffordable Care Tax from which Patients’ need Protection.
Chief Justice John
Roberts eagerly abdicated his conservative principles and abandoned reason and
logic as he rewrote the ACA to call the individual mandate, of all things, a
tax, while rowing the ship of America across the Rubicon to a place never
intended or seen by this nation – a statist socialistic country…Euromerica.
The
Supreme Court and Chief Justices
It is a long standing political axiom, that there is
no more important responsibility of a President than the authority to appoint
Supreme Court nominees for ultimate Senate approval and appointment. The lifetime appointment provides the
opportunity for literally decades of profound influence over the nation’s laws,
government and culture, a true co-equal branch of government. There have been only17
Chief Justices, while 44 Presidents have served during the same period. Interestingly,
one Chief Justice later was elected President – William Howard Taft.
As the final arbiter of the law, the Supreme Court
is charged with ensuring the American people the promise of equal justice under
law and, thereby, also functions as guardian and interpreter of the
Constitution.
When the Supreme Court rules on a constitutional
issue, that judgment is virtually final; its decisions can be altered only by
the rarely used procedure of constitutional amendment or by a new ruling of the
Court. However, when the Court interprets a statute, new legislative action can
be taken.
When the president nominates a judge for the Supreme
Court, the president is seeking an extension of his view of the constitution
and how laws should be executed. Seemingly
simple in concept, it often produces disappointment and surprises.
A prime example is former Chief Justice Earl Warren,
appointed to the Supreme Court by President in Dwight Eisenhower in 1953,
saying that Warren "represents
the kind of political, economic, and social thinking that I believe we need on the
Supreme Court.”
Earl Warren went on to lead the most liberal and judicially
activist court in history. An appointment
that Eisenhower hoped would moderate the eight “New Deal” justices who were on
the court. Signs across the nation sprouted
up declaring Impeach Earl Warren. Eisenhower
gravely regretted his appointment, stating that it was “the biggest damned-fool
mistake I ever made,” probably the similar sentiment being felt now by George
W. Bush about his appointment of Chief Justice John Roberts.
One thing is for certain about the Chief Justice
position, it is second only to the POTUS in prestige and its impact can
arguably be greater than the POTUS in some circumstances and it’s a lifetime gig.
Because of the lifetime appointment, most if not all
chief justices succumb to the “Deity complex,” where they view themselves as a primary
force in shaping and changing society in ways that elevates them in the eyes of
liberal historians, fawning over landmark decisions as if manna from heaven. It wasn’t called the “Warren Court” for
nothing.
So how does a judge with impeccable educational
credentials applied in the Regan and both Bush’s administrations reach such an
antithetical decision?
Here
Comes da Judge
Chief Justice Roberts’ decision was so shocking that
some opined that perhaps the medication he takes for epileptic seizures, in
fact can have troubling side effects, including mental
slowing and forgetfulness, suggesting that Robert’s writing reveals cognitive
dissociation in what he is saying.
In
hindsight, the influences to Roberts’ decision making may have been telegraphed
in several public statements prior to the decision. Roberts’
had been concerned since the 2000 Bush v Gore SCOTUS decision, about the public perception that his Court is
a partisan-driven Court. But no one realistically thought the Chief
Justice would subordinate proper jurisprudence to public perception. No one saw this coming.
Clearly, a chief justice
who views a self perceived public perception that the Supreme Court is partisan
driven is either seriously naive or has caved into the main stream liberal media
complaints, expectations, and invectives.
The latter seems more likely when you live and work in the epicenter of liberal
criticism and praise. It takes a strong character to overcome the “Deity
complex.”
The lawsuit filed by
26 states and the National Federation of Independent Business had at its center
the unconstitutionality of the individual mandate (mandatory insurance) and was
surprised the court even agreed to hear the Medicaid challenge, since the lower
courts had sided with the government.
All legal minds
expected the decision on Obamacare to turn on the constitutionality of the
Constitution’s commerce clause - whether the federal government could regulate
commerce and force people to participate in it.
It now seems clear
that Roberts was determined to uphold the individual mandate by any means possible
and salvage a vestige of some conservative principle. How Roberts accomplished this is less clever
than spurious.
The
Forbidden Land of the Sophists
Here’s how Roberts did
it. First, he said the constitution offered
no expansion of the commerce clause beyond regulating it. Next, Congress is not free to penalize
States that choose not to participate in that new program by taking away their
existing Medicaid funding. Looking
good so far, then the clincher, Roberts turns to the tax clause and says the individual
mandate penalty operated as a tax, and thus was proper under the taxing clause.
So how did Roberts overcome the 19th century-law known as the Anti-Injunction Act, which said a
tax cannot be challenged in court until someone has actually been forced to pay
it. Since the Obamacare mandate wouldn't go into effect until 2014 that would mean there could be no court case until then.
In the health care law, the
penalty was intentionally not described as a tax, did not appear in the revenue
section of the statute and was not meant to raise revenue, but to enforce the
mandate. Roberts had to effectively rewrite the law from the bench to make it a
tax.
As justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and
Samuel Alito wrote in their dissent, "The government and those who support
its position on this point make the remarkable argument that [the mandate] is
not a tax for purposes of the Anti-Injunction Act, but is a tax for
constitutional purposes."
It strains credulity that any justice could
allow an argument where for the purposes of constitutionality, it can be called
a tax, yet for the purposes of avoiding the violation of the Anti-Injunction
Act, it's not a tax, and causes us to realize just how badly Roberts wanted to uphold
the constitutionality of this Frankenstein monster of a law.
Mike Carvin
who argued against Obamacare before the court stated, "I'm glad he
re-wrote the statute rather than the Constitution, but none of it can pass
rational scrutiny."
The dissenting justices concluded the dual definition of the tax
argument, to say…” the Individual Mandate merely imposes
a tax is not to interpret the statute but to rewrite it. Judicial tax-writing
is particularly troubling….[we] have no doubt that Congress knew precisely what
it was doing when it rejected an earlier version of this legislation that
imposed a tax instead of a requirement-with-penalty…Imposing a tax through
judicial legislation inverts the constitutional scheme, and places the power to
tax in the branch [Judicial/Supreme Court] least accountable to the citizenry… That carries verbal wizardry too far, deep into the forbidden land
of the sophists."
Roberts weakly supported
his decision by stating in his opinion: “a general reticence to invalidate the acts of the nation’s
elected leaders,” and “It is not our job to protect the people from the
consequences of their political choices.” Hardly comforting words to rally
around.
Sorting Through the Flotsam and Jetsam
The commerce clause is now off the
table.
The states can chose not to
participate without Medicare payments being halted.
The IRS now has all the enforcement power
on the individual mandate with 17,000 new agents.
It becomes a purely political battle from this
point forward.
We
Haven’t Crossed the Rubicon Yet
November’s election will determine if the ship reaches
the other shore.
Lots to consider: rampant exercise of executive privilege
to prevent border protection and protect gun running, charged AG, failed economy,
security leaks to boost the president’s weak international image, aggressive
socialist agenda, and on and on.
Our eloquent
and articulate president tweeted after the SCOTUS decision:
Still a BFD.
Yes it is, and we’ll see just how big in November.
