Conservatives miss impact of SCOTUS ruling (updated 2jul12)

George Rebane

Taxes for value not received or those that force behaviors are penalties.

The last 24 hours has seen a tsunami of tortured analyses by conservatives doing their best to eek out something that resembles a silver lining in the SCOTUS Obamacare ruling.  Unfortunately, considering the scope of what came down, there is none.

The Republicans in DC are talking into every mike available about how clever the ruling was, and that Obama’s goose is now really cooked because the court finally confirmed that he’s been lying all along about the individual mandate not being a tax.  BFD! The sumbich can’t open his mouth without lying, and his growing list of lies fills file boxes.  Most of the electorate out there still believes that Obama’s got a mysterious, never-ending “stash” from which they will continue to get more out than they put in until the cows come home.

Respected blogs like The Blaze prattle with hopeful pieces titled ‘Five Reasons Why the Obamacare Decision might not be as bad as you think.’  Well, they continue to miss the big reason why the decision was a disaster for all Americans who understand the history and the present of government overreach.  (My own inadequate attempt at this was ‘SCOTUS backs Obamacare’ and its comment stream.)

The argument that Chief Justice Roberts closed the door on the notorious Commerce Clause of the 14th Amendment is specious.  The ruling did no such thing.  Congress can continue to make all kinds of restrictive laws citing the Commerce Clause just like they have always done.  That door was not closed by SCOTUS.

But what really happened, which people on the Right seem to not see, is that a new and bigger gate to government overreach has been identified, designed, crafted, and opened by John Roberts.   Now Congress has the additional Supreme Court invited power to mandate any behavior they wish to extract from individual citizens through private enterprises to public institutions.  All they have to do is to specify what they want us to do, buy, sell, trade, declare, surrender, … , and tell us how big of a check we have to send to the IRS should we refuse to do so.  And woe be to us if we don’t pay our punishment fines, … er, constitutionally permitted taxes.

Obama’s nudge expert Cass Sunstein must be rolling on the rug laughing.  Everything that this socialist has hoped for in government’s ability to coerce and corral behavior is now law of the land.  The new and glorious gate has been opened, and Roberts has had the good grace to write Congress the owner’s manual on how to properly go through it every time they deem that a new stricture is required to make us behave better.

For the record, liberty lost.

[2jul12 update]  For a while there I was beginning to think that no one else really understood the real catastrophe that the Roberts Ruling has loosened on the nation.  It felt lonely, and I began to re-examine my reasoning on the matter, since even Charles Krauthammer (‘The Bonze’) gave no evidence that he saw what sure seemed obvious to me.  Fortunately, over the weekend some established heavyweights on the national commentary scene weighed in, and now I consider myself to be a member of a small and, hopefully, growing minority.  (What the hell, I never was any good at joining all those consensus clatches.)

John Yoo, UC Berkeley Law School professor, said, “Some conservatives see a silver lining in the ObamaCare ruling. But it's exactly the big-government disaster it appears to be.”, and then writes in ‘Chief Justice Roberts and His Apologists’ –

Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.

In ‘A Vast New Taxing Power’ (2jul12 WSJ online edition) we read that

… the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

And Holman W. Jenkins Jr opines in the 1jul12 WSJ that Chief Justice Roberts’ ruling in favor or Obamacare was even

Worse, (that) in doing so, he may have read any constitutional limit on Congress out of the Constitution while pretending to do the opposite. Congress cannot compel you to do anything Congress wishes, but it can impose taxes on you until you finally have no rational alternative but to do whatever Congress wishes.

Comments

[Russ Steele]

It is always the Law of Unintended Consequences that ends up costing the most. It may not have been Robert's intent, but the consequences of his actions have enormous negative impact on personal freedom in this nation. Even a repeal of Obama Care will not fix the problem, his decision opened a whole new avenue of attack on the personal freedom of every person in this nation. Our only protection, however small will be to remove the liberal social engineers from power. Let's get-er done!

On the other hand, in the hands of a far right oriented power base this new avenue of behavior modification, using the taxing power of the government outlined by Roberts, the those on the right could tax abortion at $100,00 each, mandate every able body man and woman buy a 9mm hand gun, every solar paneled home pay an annual a blight tax of $5,000 dollars a year, all electric vehicles a $3,000 dollar a year road tax, and the list could go as far as your imagination would allow.

There maybe a silver lining in this ruling, we just have not thought far enough into the future.

[Todd Juvinall]

Time for a new Amendment to the Constitution perhaps. To forbid the US and others from madating we buy anything.And to define what the hell a tax is?

[Earl Crabb]

Mitt Romney is no longer running against Barack Obama, he's running against himself. Just watched an old clip where the press asks Mitt if the Romneycare mandate is a tax, to which he replies "NO." Expect to see this one about a million times between now and November.

[billy T]

Tax, mandate, penalty, whatever. The Supreme Court says they can tax me for inaction. I can be taxed for not purchasing something from a private party. In other words, I can be taxed solely for sucking air and when I can no longer suck air, they will tax my stiff cold body.

[David King]

Yes billy T.

Stupid commie progressives killed freedom, enslaved themselves, us, and our collective progeny.

Thanks, thanks a lot!

[billy T]

We the people are the rightful masters of both Congress and the Courts, not to overthrow the Constitution but to overthrow the men who would pervert the Constitution. -----Abraham Lincoln

[Todd Juvinall]

Roberts decision was akin to Justice Blackmun who wrote the decision on Roe v Wade. The result is and was, a law made from whole cloth and not created by Congress. I have been reading different articles trying to figure out his thinking *Roberts) and no one seems to be able to do so. So, here we are if we want to fix the mess we need to throw out the left from power and that is going to be tough but not impossible. Th Congress still has the ability to defund any program and if they have the guts they will. But as we have seen they couldn't even keep the PIPELINE in the Transportation bill just passed so maybe I am just a Pollyanna. Hell, who knows anymore?

[George Rebane]

To the list of conservative voices that don't understand the impact of the ruling, we must add The Independent Journal Review.
http://www.ijreview.com/2012/06/9398-why-chief-justice-roberts-made-the-right-long-term-decision-with-obamacare/

[billy T]

Dr. Rebane. Despite my deep sadness with the ruling, I continue to see a glimmer of a silver lining. In a morbidly obscene way, I am glad to see there are some restrictions of the Federal Government. This decisio0n may stop a total takeover by the Federal Government of something in the future. Can't think of that "thing" right now, but if we ever get another President that tries to fundamentally transform us into Sweden, he/she MAY find a booby trap in this ruling. Does not heal the oozing puss from this wound, but may work in the future to stop an even more grievous assault . Call it preventative medicine. There are some more booby traps in the Medicaid expansion and States Rights issues that silence at a future date the current cheering main stream media. Roberts is on the cover issue of Time magazine. He might even be the next Time Person of the Year. The Protestor was last year's person, so why not Roberts for this year? The best thing is he got 2 liberals on the court to agree with him on the limits of the Commerce Claus and the Feds bullying the States. Wonder if they will be cheering after Affirmative Action is ruled on next year. Remember, unfunded Medicaid expansion is optional.

[George Rebane]

billyT 203pm - Pray share with us the "glimmer" that you see. It cannot be the delineation of any "restrictions on the Federal Government", since the Roberts Ruling not only avoided any such restrictions, but instead it opened the floodgate to the release of uncountable mandates of uncontrolled morbidity from Washington.

The Commerce Clause was left intact to involve the feds in the ongoing management of our interstate affairs, this in a manner such that it will no longer have to be twisted into a pretzel shape to pain us in new areas. The added pains and penalties without limitation have now their own special birth canal and constitutional conduit through which to reach us.

[billy T]

Dr. Rebane, I figured you would say something along the lines of your recent comment, albeit I was pleasantly surprised by your flowery use of imaginary. No doubt they found a new method to exact their pound of flesh with razors now added to the whips. I was so saddened by Thursday's news that I slipped into a depression of monumental proportions. No joking. Seriously depressed. Manic depression if you will. The only way out for me was to turn off the news, do some deep breathing and watch some romantic comedies. There has to be a silver lining somewhere, some how, some way. I look fondly back on the Town Hall Summer of 2010 as well as the fact that 2 out of 3 Senators up from reelection are Democrats. I must forge on or perish. I do not want to live to see what our Federal Government and Constitution will look like in 40 years. Come on Doc, throw me a bone. I am dangling in the wind here.

[Paul Emery]

Hang in there Billy T. We survived the sleaze of Nixon-Agnew, the myth of Ronald Reagan and the ineptness of the Shrub Family. To survive that torture proves the inherent strength of the American culture. You'll be OK.

[George Rebane]

billyT 450pm - Well there you have it. Take strength from PaulE's encouraging correlations of the evils of Republican presidents. Since no Democrats could be so indicted, the present incarnation in that office should also prove not to be sleazy, mythical, or inept.

I myself claim that he's been multi-tasking all three, and would instead ask you for the list of romantic comedies to divert me from our national comedy which definitely is not romantic. But on a more positive note, if you don't dwell too much on the electorate, there is always 6 November 2012 and the advent of renewed hope.

[Paul Emery]

So George, you seem to find comfort in the election of most successful advocate of universal health care as your crusader against the evils of universal care. I guess it's like hiring a successful safe cracker to run security for a bank. This is getting funnier by the day.

Billy T.and Rebane seems to think all we need to do is elect Repubs and all will be hunkydory.

"November 2012 and the advent of renewed hope."

"2 out of 3 Senators up from reelection are Democrats"

For the record we also survived inflation master Jimmy Carter who fantasied about lust and felt the need to confess to the nation (really weird) and master philanderer Bill Clinton who, although he couldn't keep it in his pants did keep us out of enduring wars and balanced the budget.

[George Rebane]

PaulE 830pm - It's stretch to acknowledge Romney as the "most successful advocate of universal healthcare". Romney did his experiment as a state governor, as envisioned by the Founders who saw the states as independent laboratories to test various modes of governance. The experiment has failed according to most measures taken of the Massachusetts system, and Romney is the first to admit that he would not impose such a system on the entire country. That apparently is a hard concept for the Left to acknowledge.

All that said, Romney happens to be the only one running against a known failure now in office who promises to double down when he is given "more flexibility". That should be enough reason to vote for Romney, whether you are a Republican or a Democrat. Until we get a better candidate into the race, I'll go with Romney as the best available choice, whether he would have been my first choice or not.

[Paul Emery]

So what state "laboratories" from your perspective are at least close to being successful or on the right path? And if you're supporting Romney as the lesser of two evils are you not still supporting evil?
Also, for my education can you document somewhat the failure of the Mass system?

[Paul Emery]

Also George can you name one State that has come as close to Mass as creating a universal system? If not then concede that I am accurate in my observation that Romney is the "most successful advocate of universal healthcare".

[billy T]

Thank you Paul Emery and Dr. Rebane for your encouraging words. Watched Capote last night. Not recommended as a light hearted comedy. This whole thing brings me back to my original thoughts before I ever posted one comment on any site. That initial core belief is that politics can not satisfy. Politics can tickle the flesh and be a great distraction, but can not ever bring about Utopia or answer life's most haunting questions. Anyone who puts their faith in "government" will be disappointed. I feel that we have government worshipers, green worshipers, hand out worshipers. Sometimes I wonder if I am a work ethic and self reliant worshiper. Yes, Paul, I have been to 3rd world countries without ever sleeping in a room without a dirt floor. I have been to places where the local police/militia have later told me that they were surprised I was still alive and unharmed and no Americans were allowed in that neck of the woods. Big deal. I have been invited into the most humble of shacks and been where few have gone and treated to real hospitality and moments later I witnessed things that there is no statue of limitations for. Human nature is the one constant in life. But, hope springs eternal, does it not? Well, off to the doctors to have a new left nut sewn back on. Its a bloody miracle I tell ya.

[George Rebane]

PaulE 1007pm, 1136pm - google 'Massachusetts healthcare failure' to get a snoot full. Your (usual) tactic of inserting a red herring like 'evil', and then challenging me to joust it is humorous.

To the extent that states are still permitted to exercise their constitutional states' rights, all states are laboratories of governance from which the others can learn. Among some of the most significant teachers in that category are California, Texas, Indiana, New Jersey, Illinois, and Massachusetts.

Obama is the most successful creator of 'universal healthcare', and intends to be more successful yet.

billyT 804am - If you what you have accomplished has been done with only one, then we hereabouts should be well advised to rig for heavy sailing once the second one comes on line. :)