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Tuesday, July 3, 2012

Souter! Souter!

Just as we predicted last week, the Chief Justice is taking big heat from the right. Let's hope he pays enough attention to notice how vicious his attackers can be, and takes that to heart the next time they're asking him to roll back the Bill of Rights even further than his brethren already have.

Comments (28)

Being just barely old enough to remember the "Impeach Justice Warren" billboards of the early Seventies, I'm not surprised at the tantrums, and that's exactly what these are. I think political cartoonist Ben Sargent summed up things perfectly as far as describing the sort of Constitutional scholar currently making vowel movements about Roberts's "betrayal":

I betcha the attacks won't be as vicious as those that Justice Thomas has taken.

When did Thomas ever cross party lines to vote against type? Has that ever happened?

The Right didn't get their way, but I'm not a lawyer and am totally confused on how ROberts got to his conclusion - Which to me is a way bigger issue, no matter which way he ruled.

Now back to the Blazers.

totally confused on how ROberts got to his conclusion

Does it really matter?

Warren was nominated to the court to keep him out the Presidential primaries. People forget that Ike originally thought about running as a Democrat

and takes that to heart the next time they're asking him to roll back the Bill of Rights even further than his brethren already have.

What does increasing the power of the government to tax have to do with the Bill of Rights?

Last time I checked, the Bill of Rights existed to check government power, not massively increase it.

Warren was offered the position of Solicitor General which Warren turned down. He felt that it did not pay enough to step down as Gov of California and move across the country. Ike then mentioned the Supreme Court and he would be nominated for the first position that opened up. As it turned out it was for Chief Justice which Ike was a little wary of offering it to Warren, but he did.

If you can still find a copy, the Friday, June 29 edition of the Wall Street Journal has the most scathing and intelligent editorial I have ever read. Half of a page. Rips Roberson' decision-making powers to shreds and spells out the threat to our liberty. This should be required reading for every Congressman so they don't forget what America is about. The final sentence is a quote from Benjamin Franklin: They had created "a republic, sir - if you can keep it."

I meant to say the WSJ editorial in Monday's paper - but they are both excellent! Monday's paper goes into the legal aspects of the decision - fascinating yet disturbing.

The "penalty" as the majority opinion sees is just a method for calculating a tax.

But what about a billionaire's loophole? How much would it cost for insurance if you have a 100 million dollar deductible policy? One dollar a month?

And couldn't anyone who has a medical bill and who pays their bill (directly or by way of real risk-based insurance) demand to be "taxed" no more than the billionaire with a 100 million dollar deductible?

The insurance mandate was and is a ridiculous proxy for imposing a tax. But it is similar to our phone "tax" to subsidize rural areas, provided that we purchase the service.

I wanted "insurance" companies to sue to preserve the option to offer risk-based policies. No one can get risk-based health insurance, which is a loss to the market -- and to you and me.

Our new fancy welfare plan covers a family of four with an income of 4 times the poverty rate, or $92,000. The subsidy might mitigate the impact of the hyper-inflated-by-government "insurance" rates, but I doubt it.

Can we now call the hyper-inflated-by-government component of any health insurance bill a "tax"? Just like our phone bill tax, but here to cover all non-risk-based stuff.

Perhaps we could call this tax an unfunded personal mandate?

Chuck wrote: When did Thomas ever cross party lines to vote against type? Has that ever happened?

See 36 Hastings Law Quarterly 51 (2008)

In the post-rule-of-law world we live in don't try to make sense of any decision.

It is no longer about the law of the land, it is all about power and control.

How much would it cost for insurance if you have a 100 million dollar deductible policy? One dollar a month?

Not allowed under ObamaCare.

One of the ironic things about ObamaCare is that it forbids the kind of insurance policy that would make the most sense for a lot of people - which is a high-deductible policy where you pay health providers directly for run-of-the-mill medical stuff, and only rely on insurance for the huge bills. Instead, you have to pay for extremely comprehensive insurance, with lots and lots of mandated services. Don't want to pay for chiropractic coverage? Tough - you are going to pay anyway, under ObamaCare.

I'd prefer liability and PIP, rather than comprehensive. Hope they don't nationalize auto insurance.

On the other hand, what better way than that to force you out of your car?

can Bojack explain three things

1. if the law as passed is a penalty for failing to buy health insurance, how can the supreme court transmute it into a tax. doesn't that take legislation

2. if its a tax (as scotus says) so it can be within the power of congress, didn't it have to start in the house (that old constitution thingy again) ...where this bill passed the senate in December and the house in March

3. if the president can pass laws (executive orders) without congress and the scotus can write legislation without the congress...which of the three branches of government do we still need other than our Marxist Dictator?

The CBO's best guess was since most people already have insurance that they will keep, and most people without insurance will now be happy to get it, the mandate/tax/penalty would affect only one percent of the population.

Republican lawmakers got confused because they thought that meant THE One Percent.

If the Republicans take over Congress and Romney is elected (big 'IF's to be sure), Chief Justice Roberts will be hailed as a genius. By calling the mandate a "tax," that means it only takes a majority - no filibuster - for much of the ACA to be overturned by Congress.

So he takes a stand against overreaching via the Commerce Clause and he sets the table for a simple set of votes to gut Obama's legacy. Not a bad day's work.

Mike, couldn't Roberts have followed the clear thinking of the WSJ's editorials regarding the Constitution and the Commerce Clause? And not rewrite the ACA Statute? That would be a stroke of genius.

Plus, we won't have months of uncertainty that is already hurting the economy.

With respect to last Thursday: One piece of background is all-important in assessing the decision: ObamaCare is RomneyCare.

The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts is the health-care reform plan that Barack Obama proposed. RomneyCare made it through the Massachusetts legislature with only two dissenting votes. No office-holding Republican complained that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional, or whatnot--for it was the signature policy initiative of a Republican governor. The mandate that was at its core? That was the conservative Personal Responsibility principle. And remember the centerpiece of the Bush administration's Social Security privatization proposals: it was an individual mandate to regulate "inactivity": to require that people who had not established their own private individual retirement accounts do so.

Had the issue of "inactivity" reached the justices in the form of a challenge to a Republican mandate to purchase retirement accounts rather than a Democratic mandate to purchase health insurance, the Republican justices would have voted the other way.

But when the same Republican policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind. When a state government requires people to buy insurance, they said, that is an assertion of the Conservative Principle of Personal Responsibility. But when a federal government requires that people to buy insurance, they said, that is Bad Big Government, the Liberal Nanny State, and unconstitutional.

Go figure.


I think I can try to explain it. The main funding mechanism of the Affordable Care Act AKA Obamacare is the individual mandate. The US Supreme Court via Chief Justice Roberts upheld the individual mandate as a tax.

Taxes are the purview of the legislative branch. Furthermore, all budget bills originate in the House of Representatives. Henceforth, there does not need to be any full repeal of Obamacare to effectively gut it and make it useless.

Through the reconciliation process (specifically a reconciliation bill), where both the House budget bills and Senate bills are reconciled into one budget bill, both chambers through a simple majority vote can pass a budget. This is where the individual mandate tax can be effectively reset to zero. There is no need for a filibuster proof majority (60 US senators) if the GOP goes down this route.

As for the states, the majority ruling held that the Feds cannot deny Medicaid funding for states who refuse to go along with Obamacare, which is another wrench thrown into the progressive dream of the entire nation becoming a pool of insured healthcare consumers.

Speaking of trashing the bill of rights, it was the liberal faction of the SCOTUS that said it was OK to take a person's land and give it to developers!

Thomas voted against this outrage.


Thomas voted against this outrage.

He's the Jim Karlock of jurisprudence.

Roberts is brilliant. He did these 4 things.

1. Maintained the court's image of neutrality.

2. Weakened the commerce clause, weakening federal power.

3. Shot down the spending power, giving states the power to fight the bill individually.

4. Recast the mandate as a tax, making it much easier procedurally and politically to overturn.

A minor backlash now, but it's a great long term maneuver for his side. Those acting as if this is some sort of major expansion of the taxation power are deluding themselves. You get taxed for what you do and don't do all the time.

I personally hate paying the childless penalty.

Roberts is playing kingmaker while priming the public for some more 5-4 decisions on other social issues.

Those of us with a keen appreciation for good looking men are forgiving him already.

The original bill was introduced in the House as the "Service Members Home Ownership Tax Act of 2009" (H.R. 3590) by Charles Rangel (D–NY) on September 17, 2009. It was gutted and re-named by the Senate.

lars | July 3, 2012 11:29 AM "can Bojack explain three things"

No. Not your 3 things, somewhere off in Dumbtown. bojack's busy.

Just hold on, you are completely wrong. But thanks for the fly-over playing our game.

Looks like Agent Obama did NOT fail. Hate talkers did.

Oh, and here is for extra credit, in case you ever go out loud hating on marriage again: get some facts. Marriage certification is solely an orderly manner of State-controlled property and estate conveyance, begotten from the original State immorality of coveting to 'own' Earth land, and succession, by 'title' and 'document' and murderous violent force. Anytime your only claim to ownership or possession (of goods) is by brutality and killing rivals, then you obviously defraud your claim yourself showing the goods are not your natural own.


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