Crossing the Rubicon

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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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 The Supremely Stupefying Stunner

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:

Barack Obama‏@BarackObama

Still a BFD.

Yes it is, and we’ll see just how big in November.