Jun 28, 2012 Political
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.
Never surrender, never submit.
May 22, 2009 Political
Justice David Souter retires in June, at the end of the Supreme Court’s term for this year, and a new replacement for a Supreme Court Justice will be picked by Barama and his crew. A lot will be revealed by the choice of person he makes- will he/ she be an “activist”, a person who “champions the little people”? I expect so, although I will tell you why I think this is a bad idea.
First, a Judge is, by his/ her very nature, NOT supposed to favor any side in an argument, instead, relying on proper interpretation of the law to reach a reasoned decision. Any prejudice towards one side or the other, renders the Judge’s decision biased, and presupposes a predetermined position, in which case a responsible Judge would and should recuse him/ herself from ANY decision.
In an article in the Houston Chronicle, Tara Smith, a professor of philosophy at the University of Texas- Austin, says, “Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment. Appellate courts’ responsibility is to police the Constitution. The rhetoric of “activism” notwithstanding, the proper interpretation and application of our law cannot be reduced to a purely mechanical process. If it cold, we would be replacing Justice Souter with a computer.”
Neither can these justices MAKE law- the best they can do is to interpret the laws that the legislators draft, in order that they conform to the Constitution- a hard job in and of itself, and made infinitely harder by the leading (some would say EXTREMELY MISLEADING) words inserted into various bills, designed to cause the reader of the bill to tilt for or against the content itself.
Some examples, “unfair methods”, “predatory pricing”, a “hostile or offensive work environment”, an “appropriate fair balance”, all of these terms and more are found in the content of actual bills, and the terms are put there to satisfy the constituencies that the lawmakers wish to appease, but these same terms make the job of Justices much harder, as the terms involve nothing related to law, but everything related to a specific perspective- something the Justices must not buy into, or their decisions are not true, but tainted.
Barama wants a Justice with “Empathy”- capital E- but as Tara Smith warns, it is not enough that the Justice must be an umpire, but also more than this in adjudicating law:
“In sports, umpires do not have a say in what the rules are. They are given a complete set of rules at the start of each season and charged to call the games accordingly. In the U.S. legal system, by contrast, courts are presented not only with the Constitution ( the fundamental rules of the game, as it were), but with specific laws made by legislatures, and by agencies of the executive branch (not to mention the court’s own precedents). The court’s responsibility is precisely to determine whether all of these purported laws are compatible with the Constitution, which is our ultimate legal standard.”
The route the court must navigate is fraught with dead ends and legal land mines, but in the end, what the court must determine is if these laws are indeed valid laws. In this sense, the Justices are more than umpires in that they have a say in determining these laws’ validity. The nine Justices, whatever their personal bias, cannot roll over and acquiesce to one side or the other- to do so would be gross dereliction of duty.
It is nice that Skinny B can consider a man, a woman, a Black, Hispanic, Asian, or whatever puts a tingle up his leg, but the one thing he absolutely should not do is to attempt to put an ideologue on the court with a built in agenda of social engineering. If he does this, the damage to the court could last a generation, at least, before common sense could purge the wrongful decisions made in the name of social engineering and activism.
There is no place for activism on the bench- if you want activism, hire a great attorney with passionate convictions to argue your case, but the Justices are supposed to interpret law, not be pre- disposed to one side or another. To not be neutral is to do this country an extreme disservice, bordering on traitorousness.
Let the judges judge.