Of Kidney Stones, the Obamacare Decision and Election 2012



I was primed today for the Obamacare Decision.  I made certain that I had no court hearings today, and my appointments were not starting until 10:00 AM.  Alas my third kidney stone decided to make its appearance at 7:00 AM.  By 9:00 AM I was suffering from truly memorable pain.  I stayed home from the law mines and had my secretary reschedule all my appointments except the 2:00 PM which was in the nature of an emergency.  Nursed by my wife, and my doctor who opened his office early for me, God bless him, I soon had in my system very strong painkillers and Flowmax.  By 1:30 PM I still felt like bayonets were probing my nether regions, but duty is duty and my wife drove me to my office for the 2:00 PM appointment.  By the end of it at 3:00 PM I was feeling semi-human, the pain killers and the Flowmax working their magic.

As for the Obamacare decision, a plain text copy of the decision may be read here, the majority opinion by Chief Justice Roberts is both brilliant and wrong.  His exposition of how th individual mandate violates the Commerce Clause is magnificent.  His transformation of the mandate into a tax was clever and wrong.  The idea that something is a tax if it is used as a penalty to compel behavior is imaginative and absurd.  Go here to read an examination of the decision shorn of legal gobbledygook.  Lost in the hubbub over this part of the decision is that Roberts had a majority of the court rule that states could refuse to take part in the Medicaid expansion, a key part of Obamacare, and that Congress could not punish them by taking away all their Medicaid money.  Go here to read an analysis of that portion of the decision.

The dissent of Kennedy, Scalia, Alito and Thomas is also brilliant and correct.  Here is there response to Robert’s transformation of a penalty into a tax:

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’”United States v.Reorganized CF&I Fabricators of Utah,Inc, 518 U. S. 213, 224 (1996) (quoting United States v.LaFranca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.

I am curious as to whether the dissent was originally a majority opinion.  Did Roberts flip sides and why?  We will find out in due course, but that may be years down the road.

The political consequences of this are clear.  At a stroke the Supreme Court has converted the 2012 election into a crusade for conservatives.  If Obama is re-elected Obamacare will remain a reality.  The law is quite unpopular and the Court has now given Romney an issue that enthuses his base and will aid his fundraising.  The Romney campaign raised a million dollars in the hours following the decision.  The Obamacare decision is wretched constitutional law, but it is a godsend for everyone who wants to make certain that the author of Obamacare is looking for a new job in January.

Update I:  Since the Obamacare ruling the Romney campaign has received 3.2 million dollars in donations and the day isn’t over.  Thanks Chief Justice Roberts!

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Donald R. McClarey

Cradle Catholic. Active in the pro-life movement since 1973. Father of three and happily married for 35 years. Small town lawyer and amateur historian. Former president of the board of directors of the local crisis pregnancy center for a decade.


  1. RAPE OF THE AMERICAN SOUL. RAPE OF THE VIRGIN SOUL OF THE UNITED STATES OF AMERICA. The bishops of the Catholic Church said “NO” we cannot abide contraception, abortaficients and sterilization, as these are evils against the dignity of the human being. Obamacare said that every person forced to participate, must dispense free contraceptives, sterilizations and abortaficients, nobody has to pay for this evil. This evil is free and therefore, you will cooperate in this evil by disseminating it to whomever demands it of you. This evil is a free gift and you have no choice, you must accept it and do as you are told. You may not say “virgin” or “abstinence” or “conscience” or FREEDOM as Obamacare does not care. You must accept this free gift of evil or you will be penalized, taxed, disenfranchised and pay, pay, pay.
    All Obama cares about is the power and the money, none of which is his.

  2. I am truly glad you are OK, Donald. Praise the Lord! You, Paul Zummo, Bonchamps and the others here at TAC are voices of sanity in an insane world. And thank you for the update.

  3. Glad you’re on the mend, Don. I suggest you start drafting the Lincoln piece. If Obama’s not a lock, he’s certainly gotten a huge bounce.

  4. I’m afraid it is not good timing. It is a political win for Obama. How many people read The American Catholic? How many people believe all that the Catholic Church teaches? Far too few. Far too few to shift an election. I’m afraid that this will be trumpeted as an accomplishment and the vastly uniformed people who vote in presidential elections will accept it as that. That said, I still hold hope that the abortion/contraception/conscience may be re-legislated even by a Democrat controlled Senate and a Republican President.

  5. “the majority opinion by Chief Justice Roberts is both brilliant and wrong. His exposition of how th individual mandate violates the Commerce Clause is magnificent. His transformation of the mandate into a tax was clever and wrong. ”

    IOW, this is something only a defense attorney could love, right Don?

    On a more serious note Chapman University’s John Eastman gave the decision a thorough fisking on both the Dennis Prager and Hugh Hewitt shows. On the former, he said he thought Roberts was a problem from the word go.

  6. First of all, glad to see you’re on the mend, Don. This cannot have been the most pleasant of days for you, all around.

    I am curious as to whether the dissent was originally a majority opinion. Did Roberts flip sides and why? We will find out in due course, but that may be years down the road.

    Having read the dissent, I am about 99% certain that Roberts changed his vote, and that the dissent was meant to be the majority opinion. I should have a post providing further analysis up in about an hour or so.

  7. What if there was an umpire and he called a strike when the ball was way outside– and then said, well that’s what I call a strike. Would the batter be called out after three of those pitches? What happens when you change or greatly expand the definition of a word-
    what else could be called a tax?

  8. Don, I may be naive on some things but I read the political tea leaves pretty good. Before today, most of the “experts” were predicting a setback for Obamacare. The best bet to thwart it is for the states to refuse compliance, as some Republican governors have signaled. Obamacare/Romneycare (writ small), pretty much same thing.

  9. “You completely misread the politics Joe. Obamacare has always been very unpopular and there is only one way now to kill it: defeat Obama.”

    I have my doubts that even defeating Obama, as necessary as that is, will rid us of the scourge of Obamacare. Getting rid of it, unpopular though it may be, will be no small task. As Ronald Reagan once said, “The closest thing we get to eternal life here on earth is a temporary government program.”

    Having a repulican president who basically provided the blueprint for it and a deplorably weak GOP leadership, I wouldn’t hold my breath.

  10. I have no doubt that Romney will keep his word to do away with this Greg. This election is now about two things: the economy and Obamacare and on both issues Romney and conservatives and on the right side of public opinion. Roberts, inadvertantly, has assured the defeat of Obama and more Democrats in Congress by his bizarre switch. I would also note that since Obamacare is now a tax, a move to repeal it would probably not be subject to a filibuster in the Senate. Roberts, by sustaining Obamacare as a tax, couldn’t have given the GOP a more potent campaign issue if he had set out deliberately to do so.

  11. Anzlyne:


    Congress, on a majority vote, can take everything you have.

    It’s in the Constitution.

    Ask Obama.

    Ask Roberts.

  12. I hope you are right Don. But the thing is this is not going to be all that easy to do away with. Romney also has a serious credibility problem on this issue given that he did much the same in Massachusetts. The likelihood of the seriously gutless GOP leadership facing down this behemoth is slim to none.

    But we shall see.

  13. Don

    Hope your feeling better.

    Well pushing back Wicked v Filburn is good, but it is still a net loss if Obamacare is not repealed.

    Repeal Obama in November!

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