As always, the revamped Watcher’s Council, which is now WOW! Magazine, a collaborative magazine with posts from Watcher’s Council members and their friends, is worth checking out. If you were to go over there now, you’d find the following recent posts (and Lord alone knows how much time you could spend reviewing past posts from this informed and prolific crowd):
[UPDATE: Since I wrote this post, there is now reason to believe that Roberts issued his opinion for the wrong reasons, not the right ones. If I were to rewrite this post today, I would be less charitable to the man. Nevertheless, putting aside Roberts’ motives, I stand by the substance of my post, which is that it forces conservatives to recognize that they cannot look to any branch of the government for succor from Big Government.]
Now that the first shock of the Roberts opinion is over, many conservatives are very busy digging through the pile of manure, confident that there’s a pony in there somewhere. In this, we are distinct from our Progressive/Democrat counterparts, who would be busy rioting in the streets and sending death threats to John Roberts.
Having had more than 24 hours to come to terms with the decision, I’m beginning to think that there may indeed be a pony (or several ponies) hiding in there somewhere. Moreover, I’m also realizing that Roberts, despite the apparent wackiness of his decision, stayed true to his constitutional roots.
As is always the case with me, I build my argument slowly, so please bear with me. I’ll try to maintain some tension and excitement as I go.
Speaking of tension and excitement, my first point involves a screaming fight some colleagues of mine got into yesterday. Because they’re nice folks, it wasn’t a vicious, personal, ad hominem fight. They just kept making the same points over and over again, at ever-increasing volume. They seem to have locked into the same line of reasoning that says that, if you speak really LOUDLY to someone who doesn’t understand English, you will make yourself understood.
The topic my friends were debating was whether heroin should be legal or not. One side staunchly opposed legality because heroin is so dangerous; the other side equally staunchly advocated legalizing the drug, because it has benefits that go beyond the medicinal. (I’ll take the other side’s word for it, since recreational heroin seems merely self-indulgent to me.)
What was fascinating was that both sides laid claim to the government to support their argument. Those who feared heroin’s risks felt that only the government could protect Americans from the drug’s dangers. Those who believed it should be legalized, after pointing out correctly that making heroin illegal doesn’t stop either its use or the societal downsides, believed that only government could manage heroin. These people envisioned corner dispensaries, apparently along the line of the DMV.
At a facetious level, I have to agree with the guy who wants to put heroin in government hands. Can you think of anything that would make heroin less appealing than having to deal with government functionaries a la your local DMV? I can just see it now: Long lines, rude clerks, poor quality service, mountainous bureaucracy and, to make it worse, you’ve got the joneses the whole time.
At a more serious level, both sides were right and both were wrong. Making heroin illegal hasn’t stopped heroin use, just as it hasn’t stopped marijuana use, or underage drinking. Putting it in government hands, however, is a recipe for corruption and still won’t stem abuse. It will just make the government the pusher, which is a sleazy and awful idea.
Perhaps the smartest thing is to legalize heroin and put it into the free market. Then, as we do with alcohol, we punish behaviors that stem from the abuse, such as driving under the influence or, less directly, any robberies, assaults, etc., that results from someone’s need for the drug or use of the drug. Let individuals make their choices.
Of course, some individuals aren’t in a position to make a choice. They get the burdens, not the benefits. Which leads me, inevitably, to Prohibition. (Believe it or not, I’m still on track to a rip-roaring conclusion about Justice Roberts’ opinion.)
Prohibition was not the result of whacked out Church ladies, anxious to destroy all joy in the world. Instead, it arose in response to an alcohol-soaked culture, one that saw working men instantly spending their paychecks at the local saloon. “Father, dear Father, come home with me now,” wasn’t just a maudlin song; it was real life for tens of thousands of children, begging their father to leave the saloon and bring what little remained of his week’s pay home to the family. Of course, when father came home, there was always the risk that he’d beat the living daylights out of Mama and the kids, but as long as he brought some money with him, what could you do?
The Dry Movement was a direct response to America’s sodden state. But here’s the thing: the reason Prohibition passed was because the culture changed so radically that a critical mass of Americans could force a change to the Constitution. By 1920 — and this is something no one at the time realized — the paradigm shift in American culture was probably sufficient to change its drinking habits without coercive pressure from the federal government. Drinking was no longer morally acceptable in many communities, which were already dry by 1920. Local values controlled. People who hated alcohol could move to a Dry town or they could agitate to change things within their own communities.
Once the government stepped in to control alcohol (and it was controlled, rather than completely prohibited, as certain religious or “medicinal” brews were still allowed), all Hell broke loose. We became a nation of scofflaws, organized crime, and corrupt law enforcement. Yes, drinking did continue to diminish, but it had already been diminishing before the Feds stepped in. All that happened with government-control is that bad things happened too.
You can see an analogous situation with Johnson’s Great Society. In the years leading to it, two things happened in America: The Civil Rights movement, which focused on the serious wrongs done to black Americans, and which was a topic that dominated America’s intellectual airspace; and the rise of the black middle class, which happened behind the scenes as the culture changed.
Laws banning discrimination rightly addressed the Civil Rights crimes. However, the Democrats added to the mix huge changes in welfare, i.e., Government-involvement in black lives. As is so often the case with the government good intentions, the massive legislative intervention into American life — and, specifically, into black American’s lives — reversed black folk’s economic advancement. If the government could just have stopped itself with leveling the playing field, it’s questionable whether today blacks would consistently rank among America’s poorest, least educated, and crime-ridden population. The problem was that, in the 1960s, as in the 1920s, Americans, especially educated Americans, couldn’t conceive of an organic solution to a visible problem. Government had to “fix” things.
Which, at long last, gets me back to health care and Justice Roberts’ decision. (And you doubted that I would ever loop back to my main point. Oh, ye of little faith!) Roberts wrote the decision at the end of a 90 year continuum holding that Government fixes problems and the Supreme Court fixes Government. This approach makes “We, the people” unnecessary. Rather than elections being the corrective, the Court is the corrective — except that the Court’s make-up is controlled by the Government. (Remember the Bork debacle?)
Roberts refused to play this game. He slapped back the Democrats’ hands when it came to the Commerce Clause, telling them that the federal government cannot legislate inactivity. And he held — quite correctly — that if there’s any possible way for the Court to salvage a law, it must do so. His salvaging was to say that, this particular law, written in this particular way, with these particular controls over the people, can be salvaged by calling it a tax. It’s an ugly decision, but probably a correct one. And then he tossed the whole thing back to the American people.
I can just see Roberts’ thought-process (although he might have thought in more polite terms): You idiots elected a Congress and president that used every kind of political chicanery known to man in order to pass the biggest tax in American history and one that, moreover, completely corrupts the free market system. It’s not the Supreme Court’s responsibility to correct that kind of thing, provided that the judges can, as I did, find a smidgen of constitutionality in it. There’s an election coming up in November. Let’s hope you’ve wised up enough to figure out that my Supreme Court is returning power to “We, the people.” We will not pull your chestnuts out of the fire. We will not legislate from the bench. We will construe things as narrowly as possible. If you, the people, don’t like it, you, the people, elect different representatives.
In the short run, this is an enormously painful pile of manure for American conservatives. In the long run (a run that, I hope, includes November 2012), if we Americans are smart and genuinely believe in our liberties, we’ll find so many ponies in that manure we’ll be able to have a pony parade right up to the steps of White House and both Houses of Congress.
I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head. In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War. One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory. By parsing the decision as he did, Justice Roberts prevented another American civil war.
When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines. If I’m in sync with Krauthammer, I’m clearly in good company.
Krauthammer’s view is that Roberts wears two hats. The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause. The second hat is as the Supreme Court’s custodian. That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans). So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:
That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
I think Krauthammer’s analysis is correct. Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed. He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere. The American voters, by putting Democrats into Congress and the White House, broke the American system. They now own that broken system and it’s up to them to fix it. In this case, if the voters are smart enough, they’ll elect Republicans by a large majority. If they’re not smart enough, we’re in for a lot more breakage.
Viewed this way, Roberts did the right thing. He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.
The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election. They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head. Unfortunately for Obama, Romney will be able to rally his base. If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012. Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.
Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals. This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct: taxes on the middle class.
That’s all good. What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause: From this day forward, Congress can not only tax activity, it can also tax inactivity. Long after Obama is gone from office, that legacy will remain. The only saving grace is that taxes require simple majorities. Easy come, easy go, one might say — except that taxes never go away easy, do they?
I’ve now had the chance to digest myriad analyses of the Roberts decision on ObamaCare. I think I can sum up the various conclusions that liberal and conservative pundits have reached. Here goes:
The decision is a victory for Obama and the Democrats because it keeps ObamaCare on the books. However, it’s a victory for Mitt Romney and the GOP because it reminds Americans that Democrats like to tax them. The only problem with the latter view is that Americans aren’t paying attention to things like ObamaCare and taxes and these credulous citizens will just role with whichever side looks victorious, which is either the Democrats and the Republicans.
The only exception to the rule that Obama’s role with the winner is the Tea Party, which is likely to be galvanized into action. Naturally, though, the Tea Partiers are too demoralized to do anything constructive, other than riot in the streets. We know from past Tera Party events that the smiling grannies togged-out in matching red, white, and blue outfits are especially dangerous.
ObamaCare will never be repealed because the Republicans cannot get a majority in 2012, let alone win the White House. This is a “true fact” as long as you take into consideration that Mitt Romney will almost certainly win the 2012 election on an anti-tax platform and that the House will stay Republican. The Senate, of course, can go either way, with Republicans getting either 51 seats (enough to reverse a tax) or 60 seats (enough to prevent President Obama, who will definitely win in 2012, from vetoing a repeal.
If the Republicans take over both Congress and the White House, which won’t happen, they can fully repeal ObamaCare, which won’t happen. However, if they only keep the House, they can refuse to fund ObamaCare, which is great, because it leaves it useless, except for all of the mandates that continue to exist.
Over the long haul, of course, Americans are more free because the decision restricts the Commerce Clause. This, however, ignores the fact that they’re less free, because they can be taxed for anything, including breathing or, as the case may be, not breathing.
John Roberts is someone who is suffering from a seizure disorder and is probably being blackmailed. Neither of these factors really matters, though, because the Chief Justice is clearly a Machiavellian bridge, chess, or poker player who is taking the long view and setting the Republicans up to win in 2012 on the issue of higher taxes. Or he’s taking some sort of really long view that enables Obama to do a victory dance in November 2012 because his signature legislation survived. In a second Obama term, with a Democrat House and Senate, people will really learn to hate those tax-and-spend Democrats. Those few remaining Americans who have not been sent to re-education camps or have not been disenfranchised by a vote transferring all citizenship rights from native-born Americans to illegal aliens, will have the opportunity in 2016 to make all 48,739 of their voices heard.
In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties. Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.
I hope everyone understood this lesson. There will be a test tomorrow.
The Supreme Court opinion on ObamaCare runs to 193 pages. It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it. I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through. For now, bottom line is sufficient. Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.
Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:
It’s an interesting argument, but one that should have Americans worried. Basically, this is a tax that you have to pay to private companies. For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II]. The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing. It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.
Nevertheless, this is the law of the land. We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.
Taxes have traditionally been levied to enable the government to buy and build things. This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors. Taxes normally tax activity. Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction. That’s the important thing. The transaction is voluntary. You can opt to sit it out and the government cannot reach you. Here, though, we are being told that the government can exact an onerous tax for inactivity.
The decision constitutes a radical redefinition of what constitutes a tax. It is exactly what opponents said it was: the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid. I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it. It is a staggering constriction on individual freedom. The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy. Poll taxes are flat taxes but, more importantly, they tax someone just for being.
Okay, that’s the bad news and it’s very bad in the long-term. There are some potential short-term benefits, although they’re only possible, not probable:
Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded. Still, unfunded doesn’t mean vanished. All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.
The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney. That’s so not a sure thing, though. It’s a great victory for Obama, and might finally put the wind at his back. His signature legislation is a good thing, said the United States Supreme Court. For many Americans, that might fall into the category of “that’s all she wrote.” The fat lady has sung. The opera is over. It’s time to go back home and get on with your life. If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money. (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)
I am disheartened, but disheartened is not the same as defeated. It is now imperative that Republicans take back Congress in its entirety and win the White House. Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.
The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)
Jay Cost (this may harm Obama more than he thinks in the long run)
Slate (Obama wins battle; Roberts wins war)
I read E.J. Dionne’s fatuous defense of Kagan in The New Republic, and started formulating a response to his superficial argument comparing Kagan to Roberts. (It was so superficial it almost, but not quite, devolved into “and they’re both homo sapiens.”) Fortunately, I was spared that effort when I read both Paul Mirengoff’s and Ed Whelan’s posts today, both of which say precisely what I would have said if I wrote as well and had as much information at my fingertips as these guys do.
Bottom line: Kagan’s legal reasoning has proven to be less than sophisticated, and is frequently (too frequently) wrong. Further, any professional comparisons between her and Roberts really do stop at the “they’re both homo sapiens” level.