My Evolving Opinion On Roberts

Time has passed since the SCOTUS ruling this morning and I have had a chance to review the opinion of the Court. I still contend that John Roberts participated in judicial activism by calling the penalty a tax when the law, Congress and Barack Obama himself said it was not a tax. It is not up to members of any court to rewrite what a legislative body has written. I am not so sure my earlier claim that Roberts betrayed America is accurate. It feels like a betrayal because he is supposed to uphold the Constitution, not write law but how it feels and what it is are two different things.

But, and this is a big but, he did rule that the Commerce Clause could NOT be used to enact Obamacare (now Obamatax). This is an important thing because it is now settled law that the government cannot compel people to buy things with a Commerce Clause argument.

All along the penalty was seen as a tax by Republicans. Democrats knew it was a tax but could not call it a tax because that would have spelled doom. Obama promised not to tax the middle class and he is on record as saying that people should not get health care by taxing the middle class. So, they had to call it a penalty.

John Roberts, as Chief Justice, was in a precarious position. Liberals were bemoaning the defeat of Obamacare and were all ready with their attacks on the conservative part of the Court. You will notice they never call the four solidly Democrat votes activist, only the conservative votes. in any event, he needed to do something that would uphold conservative principles, reign in government but also give the appearance that the Court is not activist.

Roberts achieved this by declaring that the mandate could not be enacted under the Commerce Clause. That was simple enough and it is sufficient to take the teeth out of future attempts to use Commerce for government expansion.

Roberts, once he asserted that Commerce could not be used to force the mandate acknowledged that Congress had the authority to tax people. He therefore called the penalty a tax which is what it was all along and is what Republicans said from the start.

While I think this amounts to judicial activism I think it was activism that appeared to give the left what it wanted and at the same time smacked them in the head.

Roberts declared that the penalty is a tax. This ruling now means that Obama has enacted the largest tax increase in the history of the world and he did so primarily on the middle class. Roberts gave Obama the outcome he wanted and at the same time demonstrated that Obama is a liar because making this a tax negates the vehement protest Obama made that it was NOT a tax. It also negates his statements that he did not believe everyone should get health care by levying a tax on the middle class.

The ruling also takes away the perception that the Court is political. If Roberts accomplished this while putting the screws to Obama then he is smarter than I originally believed.

He also energized the majority of people in this nation who do not want Obamacare and he gave Mitt Romney a huge gift at the same time. Obama cannot campaign on an activist Court striking down Obamacare but Romney can campaign on Obama being a tax and spend liberal who has given us the biggest tax increase in history. It would appear as if the ruling had a good effect on Romney as his campaign claims to have received about a million dollars in donations just three or four hours post ruling.

I still believe Roberts engaged in judicial activism but I am not as convinced he betrayed the Country. My initial reaction was based on the reports that the mandate was upheld. My belief was that the Commerce Clause argument was allowed to stand and that we could all be forced to buy things under this scheme.

Since this is not how it played out my assessment was hasty and incorrect. I offer an apology to Roberts for my assertion that he betrayed the country.

Like I said, he engaged in judicial activism (which the left is fine with because it went their way) and I am never in favor of that. I believe all branches of government should stay in their own lanes and things will work better.

Time will tell how this plays out and I am interested in seeing how the polls taken after the ruling trend. I think that while liberals celebrate the “victory” they achieved today they are worried because they are aware of what the ruling means for November.

To be sure, Obama (an alleged Constitutional Law Professor) had his mandate ruled unconstitutional. The law was only upheld when the Court changed his penalty to a tax and removed Commerce from the equation. So Obama, in winning, got it wrong. This is not something one would expect from someone who claims to know the Constitution.

I think this ruling might end up being a genius move and might end up costing Democrats. Many lost their seats in 2010 because of Obamacare. That was the only issue on the table and they lost.

Now, millions of seniors and many others who regularly vote as well as those who are opposed to the law and will certainly vote, are energized and will get out to defeat Obama.

The SCOTUS issued its ruling today.

We issue ours in November.

I am praying that we take a lot of seats in the Senate, gain more seats in the House and send Obama back to the street corner where he belongs.

UPDATE: One last note. I read something that is intriguing. Since the Court has ruled this is a tax the Senate only needs 51 votes to overturn it. If Romney wins the presidency and we maintain the House we would only need 51 Senate seats to overturn Obamacare. It could not be blocked by needing 60 votes because it is a tax. I think Roberts might have done us a favor but the rest is up to us. We need to win big.

Cave canem!
Never surrender, never submit.
Big Dog


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13 Responses to “My Evolving Opinion On Roberts”

  1. Eoj Trahnier says:

    Wow. Look at those two posts above! I think they are both from Adam and his backwards hat snapped back on his deformed brain!

    BD, I had the same initial feelings of betrayal, and second thoughts that this may be the decision that wins Romney the presidency. John Roberts participated in judicial activism because he made a vote so as to not appear to be activist. That is still activism.
    However, it reminded me of Dustin Hoffman in “Little Big Man,” when Custer asks him, “Shall I attack the Indians at Little Big Horny!”
    It didn’t matter the answer because Custer had already decided what he wanted to do.

    In this case, no matter what Roberts did, it would be seen as “activism,” and the fact is anything anyone does can be seen as activism. Eat a jello salad? Activism!

    But I think you are right, BD, and Roberts just handed the presidency to Romney. Another reason Bush will go down in my book as a great American President; he had the foresight to bring in Roberts. And I am feeling much better about the prospect that America will soon see the hind-end of Obama, leaving.

  2. Adam says:

    Sorry, Eoj. I hardly ever have time to read this site so that wasn’t me in the other thread and when I do I try to be selective in when I comment simply because I may not have time to argue a thread like I used to.

    I will point out that Big Dog’s “largest tax increase in the history of the world” is a lie that Limbaugh and others have repeated since the ruling in their attempt to turn a lemon into lemonade. Politifact gave this the Pants on Fire it deserves. This less than 1/2 of 1% tax increase isn’t the biggest by far and isn’t even bigger than one of the tax increases under President Reagan.

    So far the 2012 election doesn’t seem to be looking like a sure thing for either side so talking up a party takeover and repeal is jumping the gun a bit. Democrats are leading a very close generic ballot and President Obama has pulled away again in the presidential race recently. I generally tell people it’s too close to call at this point though. I’ll be interested to see if there is any measurable impact on polls based on the SCOTUS ruling.

    • Big Dog says:

      Polls of registered voters give Dems the edge. The polls of likely voters give Repubs the edge. The Republicans and Independents had a whole lot more people become likely voters after Thursday.

      • Adam says:

        That is not true in the presidential head to head polls where Obama has lead every poll for weeks no matter who is being sampled. When it comes to registered versus likely your side has to really hope defeating Obama sustains enough enthusiasm to offset the drag from nominating a flip-flopper blue state governor who also happens to be a super duper rich Mormon (a group many Americans don’t consider Christian).

  3. Adam says:

    I don’t think healthcare will have impact on the polls though honestly. The focus is still on the economy. The biggest factor will be whether or not we enter a recession before November. Some signs point to us being in a recession already starting a few weeks back. Others point to simply sideways growth that neither hurts nor helps President Obama’s case for a 2nd term. We’ll just have to wait and see.

    • Big Dog says:

      Hey Adam, good to see you are around. I hope all is well with you and your wife.

      The economy? The Dems have not focused on that and if they have to run on it they are in deep stuff. Obama got the ruling he wanted but not the way he wanted it and it has mobilized a lot of people. Nearly 2/3 of the country hates Obamatax so that is going to be a rallying cry.

      All of the costs are now taxes. This will cost us about 2 TRILLION dollars. The taxes by 2014 re around 3/4 of a trillion so yes, this is the largest tax increase because it is now ALL taxes. The taxes originally to pay for it and the penalties that are taxes. They all add up to much more than Politifact would have you believe.

      Keep thinking that it is close but an incumbent who is having trouble breaking 50% is in trouble. I see the makings of a landslide and I think Roberts helped it come about.

      • Adam says:

        The family is doing fine. We’ve been on vacation this week for a change so we’re not quite as busy.

        The Democrats did everything they intended to do on the economy before switching to work on healthcare. By the time it was clear ARRA would not put a dent in mess left by President Bush it was too late. We’d already elected another do-nothing GOP House majority. But you know how the old saying goes: Republicans believe the government can do nothing right and they get elected to power just to make sure that is accurate.

        You can keep repeating the nonsense about taxes but that doesn’t make it true. You just don’t have to worry about fact checking from your side though because it’s at the point where anything that smears President Obama passes for facts for you folks.

  4. Big Dog says:

    Just so I have it right, you are saying that when the Democrats had big enough majorities and the White House for two years and got little done it was no big deal but a Republican House that can’t do anything on its own is do nothing. Perhaps you should look at the Senate and remember, it was Democrats who have not passed a budget in 3 years and it is the Senate that has blocked everything the House is doing. The real do nothing is the Democrat Senate.

    Nice try though. Perhaps you can spout that Bush did it and the Republicans are bad mantra and win. I doubt it but give it a shot.

  5. Big Dog says:

    The elected Obama and he is no Christian. And there is no religious test but you bigots on the left are always worried about demographics. A flip flopper did not matter to you when it was Kerry but I would rather have a flip flopper than a liar. Obama has continually lied.

    In the latest polls I have seen Romney beats Obambam when LV are sampled. He leads when RV are sampled. Real Clear politics has that head to head up and Romney leads the last three LV polls while Obama leads RV.

  6. Adam says:

    “…you are saying that when the Democrats had big enough majorities and the White House for two years and got little done it was no big deal but a Republican House that can’t do anything on its own is do nothing.”

    Actually the 111th Congress was very active and very successful in passing major legislation. I’m wondering what the 112th has even tried to do, let alone accomplished. How does the Senate keep the House from passing anything? It’s one thing for the Senate to stop it from becoming law but it’s another for the House to do nothing as it’s done. The House’s agenda is to stop President Obama. They said that. They’re busy doing it. It’s a wonderful batch of folks you helped vote in there.

    “And there is no religious test but you bigots on the left are always worried about demographics.”

    Can you honestly tell me that you think that Romney does not lose votes from some on the far right because he’s a Mormon? It’s not a requirement that he be one religion or another, it’s just a fact that demographics add to and take away from voting blocks the same way that race and gender do. I listen to a great deal of right wing radio and these radical radio righties do not like Mormons very much.

    “Real Clear politics has that head to head up and Romney leads the last three LV polls while Obama leads RV.”

    I’m not seeing what you’re looking at. Rasmussen has Romney leading in a LV poll that came out since my last comment but Obama has lead the last 10 straight polls including 4 LV. Obama is on a temporary upswing again but it probably won’t last. I expect it to be close all the way up until the election and perhaps even Romney leading from time to time if he picks the right VP and gets a bump.

    • Big Dog says:

      This House has passed a lot of legislation that was tabled by the Senate. They will not even engage in debate because they do not favor any of it so they just ignore it. The House and Senate controlled by Dems has not passed a budget in over 3 years. The Republican House passed one and Harry Reid said that the Senate was not going to do that.

      The right candidate for VP is not a sure thing. Palin is smart and energetic, had more experience than Obama and gave McCain a bump but the media wing of the Democrat party savaged her and her family while ignoring glaring problems with Obama. Their mission was to destroy her and they went about that with glee.

      I think she has the last laugh as her guest appearance had higher rating that Couric’s show. She is doing well and a number of candidates she has backed have won. People seek her endorsement while Democrats are backing away from Obama.

      The public is going to make those who voted for Obamatax pay for their vote even worse than in 2010.

      I am sure there is a small minority of hard right people who do not like Mormons just like most Liberals do not like Christians in general. Look how they savaged Bush for being a religious man and that was not just the hard left but all of them in general.

      I really do not think Romney’s religion will be an issue. With him you know what you get. With Obama, you got a guy who sat in a church with a hate filled preacher spewing anti American slogans while Obama lapped that up and the left loved him even more for it.

      Obama will have trouble with working class whites, Independents and is losing some of the female vote. He will be forced to defend states that should be his by demographic (traditionally blue). It might just be a long campaign for him particularly if papers leak that show he was involved in Fast and Furious (there is no doubt he was). Imagine that October surprise…

      • Adam says:

        The right is counting on the Romney negatives to be outweighed by hate for Obama. It didn’t work for Kerry but with Super PACs it might work for Romney.

        The funny thing about waiting for an “October surprise” is that the right has been waiting for one for years without any success. The right has spent millions on vetting Obama but still today your side claims he’s never been vetted and we’re just one secret document or one missing birth certificate away from the end of a president.

        The only “October surprise” might be that by October it becomes clear Romney is headed for a landslide loss against a President the public gives far more credit to than those on the right like yourself.

  7. TheInformer says:

    I believe that Roberts decided to take the arrows when he made the vote he did.

    To wit: if Obamacare didn’t make it, Obama and his people would just craft another more devious version of it. The Republicans would continue their political meandering and as such give Obama an opportunity of winning the upcoming election.

    Now consider what Roberts did. His wording of his decision keeps the commerce clause from being used in the future to pervert the Constitution as was being attempted with Obamacare. His naming the act as a tax with help the Republicans in the upcoming election. Obamacare being passed will help because it now energizes a Republican/conservative/libertarian base that was meandering around, politically. It will cause them to fight against Obama’s re-election and fight to repeal Obamacare.

    It gives them a goal, a theme.

    I believe Roberts thought this entire process through Socratically and did what he did because it was the best possible solution for the future.