Big Lizards:Blog:Entry “Attack of the Robes - <strong>Updated, see bottom</strong>”

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June 28, 2012

Attack of the Robes - Updated, see bottom

Hatched by Korso

Sigh. If only this set of Supremes had taken a cue from their Motown counterparts: "Set me free, why don't you, babe? Get out my life, why don't you babe?"

That's certainly the message the majority of the American public sent to Congress in 2010, when Republicans made historic gains and Democrats scratched their heads wondering how they could tailor their message to make Joe Sixpack understand that the dog turd of health care "reform" they had passed was really a chocolate truffle.

Alas, the Supreme Court -- Justice Roberts in particular -- seems to have missed the memo, if the legal calisthenics they just went through to uphold ObamaCare are any indication.

So a mandate to buy health insurance that isn't permitted under the Constitution's Commerce Clause is permitted under the tax code? That's a distinction without a difference -- or, as we say out here in the real world, bullcrap.

This should be an object lesson to any politician out there who lets bad legislation skate with the thought that the Supreme Court will straighten the mess out later. It didn't work with George W. Bush and campaign finance reform, and it didn't work this time with ObamaCare.

This should also be a lesson to everyone else who waited with bated breath for the court to make the right decision: never, ever count on the people in black robes to save the day. When you get right down to it, the Supreme Court just isn't that into you.

So what's left for us to do? Being a happy warrior, I don't believe that all is lost. However, we're gonna have to go all street on the Dems this fall if we want to kick enough of them out of Washington to repeal this beast of the realm known as ObamaCare. Mitt Romney, especially, will have to pound on the mandate really being a tax -- and making damned sure that people know that it's a regressive tax, one that will hit young voters and lower-income folks (in other words, Obama's base) the hardest.

Stay on target, everyone. Stay on target.

Dafydd adds: John Eastman, who holds the Donald P. Kennedy Chair in Law and is the former Dean at Chapman University School of Law, made a very interesting point on Huge Hewgitt today. The Chief Justice held that the ObamaCare mandate was constitutional because it really is just a tax, that is, a bill to raise revenue.

Now article 1, § 7, ¶ 1 of the United States Constitution reads:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Given that the Patient Protection and Affordable Care Act of 2010 originated in the Senate, not the House, doesn't that mean that the individual mandate -- which Roberts held was a tax to raise revenue -- is still unconstitutional?

Should we have another round of courtyardery?

UPDATE 29 June: Commenter Baggi suggests that, while the bill appeared to have originated in the Senate, that body actually hijacked, removed, and replaced a House bill with the entire 2,700 pages of ObamaCare; if true, then technically the bill originated in the House of Representatives, as required.

This is not an issue into which I will delve deeply; the real problem is that Roberts engaged in what I have long called the fallacy of tendentious redefinition, taking something that is clearly a penalty (labeled as such throughout the act) and bizarrely redubbing it a tax, for no purpose other than to find a way to uphold the act by any means necessary.

This is what I expect from Justice Elena Kagen or Sonia Sotomayor -- not Chief Justice John Roberts. I'm beginning to squirm, wondering if this really is, at core, the early stages of Roberts "growing in office."

Hatched by Korso on this day, June 28, 2012, at the time of 5:15 PM

Comments

The following hissed in response by: snochasr

I was wondering about that. Didn't this bill originate and pass under San Fran Nan's leadership, and then the Senate Shenanigans Dept. used "reconciliation" to approve it? Otherwise, I hope some legal eagle out there is on the case. Too late for this year, though, the court has adjourned.

The above hissed in response by: snochasr at June 29, 2012 7:11 AM

The following hissed in response by: seePea

Ditto here, i was wondering how this would work if the bill was a tax (despite the D. congressmen insisting it was not a tax during deliberations) and it was deemed the Senate passed it first.

But - today, Friday June 29th, is the first time since the President declared he was running for re-election that I have real sense of hope that he will not win.

The above hissed in response by: seePea at June 29, 2012 3:33 PM

The following hissed in response by: Baggi

Dafydd,

I was thinking the same thing, no such luck though.

It seems the Senate played a trick. They took up a bill from the House, stripped it of everything, put in Obamacare, then passed it.

Apparently this is all legit.

The above hissed in response by: Baggi at June 29, 2012 3:46 PM

The following hissed in response by: wtanksleyjr

Dang -- that (the tax thing) is a good point.

I hadn't even thought of it. And it totally ruins my argument in favor of this ruling. Not that I WANTED this ruling, you see, but I thought it was inevitable, because the only weighty argument being made against it was that "to be constitutional it would have to be a tax". My assumption was that the Senate would somehow find a way to make it a tax after the fact even if the court reversed the whole thing.

But since taxes can only originate in the House, you're right that this CANNOT happen, given the makeup of the house. Yowch.

-Wm

The above hissed in response by: wtanksleyjr at June 29, 2012 8:17 PM

The following hissed in response by: wtanksleyjr

Baggi. Dude. I thought you were joking. That's a joke, right? Cause it's so blatantly WRONG.

But you're not joking; the Senate's health bill was defeated, so they grabbed "H.R. 3590, a bill regarding housing tax breaks for service members." (According to Wikipedia.) They gutted it, changed its name, and filled it with the contents of the old, defeated act.

Wow.

OK, there's a lesson here. A judge's job is to rule on the arguments that are presented before the court. If judges rule on an argument that isn't presented, as it appears to me that Roberts did, it means that the opposition is denied the ability to argue against it. Had proper arguments been raised, this problem would have been raised -- and since the mandate DID in fact act like a tax, and since it DID NOT originate in the House for constitutional purposes (same argument!), therefore it is an unconstitutional tax, by all of Roberts' arguments.

Now, with all that said, I'm STILL not overjoyed at this argument (much less at the fact that it wasn't presented). This should have defeated the Act; but it highlights the fact that the Act was only barely, technically possible to rule unconstitutional. Yet it's very clear that the whole thing is a boondoggle.

Sigh... Anyhow... I actually WAS impressed by Roberts. Now I have to take that back. Roberts was objectively unjudicial.

-Wm

The above hissed in response by: wtanksleyjr at June 30, 2012 9:53 AM

The following hissed in response by: Baggi

Dafydd,

I think we can find out about this "Growing in office" thing pretty quickly.

California passed a constitutional amendment not too long ago to make marriage between a man and a woman (Actually, it was awhile ago, but it's recently in the courts).

I'm sure that will make it's way to the Supreme Court.

If Roberts finds a way to strike this law down, his transformation will be complete.

The above hissed in response by: Baggi at June 30, 2012 1:18 PM

The following hissed in response by: Javert Freeman

There isn't crap we can do about it until November. I'm digging out my Vanilla Fudge version of Set me Free and enjoy the long weekend.

The above hissed in response by: Javert Freeman at June 30, 2012 3:33 PM