Thursday, March 28, AD 2024 3:36pm

Man Up Conservatives!

 

From a thread at Creative Minority Report on the ObamaCare decision:

Anonymous said…

If I encountered John Roberts at this point I would not shake his hand. This is simply appalling. Add to this the fact that Obama is going to be re-elected, and our nation as it once was has effectively been destroyed.
I am actually questioning the decision to try to bear children at this point. If I could go back in time I would strongly consider not having made the life choices I have but instead just living out the rest of my life in a monestary and just finding a way to tolerate the rest of my days.

My response to this type of hysterical hogwash:

Oh Good Lord!  Conservatives need to man up.  This decision is a Godsend for conservatives politically.  Obamacare remains immensely unpopular and now the only way to stop it is to defeat Obama in November.  The Romney campaign raised over 3.2 million dollars in contributions after the announcement of the decision yesterday.  This decision will be a millstone around the Obama campaign’s neck.  However, for those conservatives who are only happy when they are miserable, please feel free to wallow in pessimism while the rest of us work to ensure that both Obama and Obamacare go down in flames come election day.

 

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Paul W Primavera
Paul W Primavera
Friday, June 29, AD 2012 7:34am

I may be a pessimist, Donald, but I shall work tooth and nail to the best of my ability to help in whatever small way I can in the defeat of Barack Hussein Obama. The fat lady has not yet sung, as it were. Things may look grim right now, but Jesus Christ is still on the throne and nothing happens but that He permits it to happen for His own divine reasons.

Death to Democracy (two wolves and one sheep voting on what’s for dinner)!
Long live liberty (a well armed sheep contesting the vote)!
Viva Cristo Rey (a saying which the Democrats simply can’t stand)!

Joe Green
Joe Green
Friday, June 29, AD 2012 7:39am

Talk show host Michael Savage asserts that Roberts suffers from epilepsy and his meds may have affected cognition and ability to think straight. A wild theory but not discountable in light of the irrationality of his decision. In effect, one man and one vote may have determined America’s future.

Dante alighieri
Admin
Friday, June 29, AD 2012 7:45am

I agree that the political fallout from this might benefit the GOP, though I remind everyone that the man tasked with carrying the mantle to attack Obamacare is the guy who implemented the same thing in the state of Massachusetts. Regardless, I do think that Romney will most likely win in the Fall. Whether or not he and the Republicans in Congress have the gumption to do with they must next year remains to be seen.

Just as we must not fall prey to undue pessimism, let’s also not whitewash the decision. The Chief Justice abrogated his responsibility to uphold the Constitution in a quixotic effort to save the “integrity” of the Court, while in the end accomplishing the exact opposite of his aim. There is nothing to celebrate with such an outcome, particularly when the GOP likely would have emerged victorious anyway this November if the outcome had been different.

WK Aiken
WK Aiken
Friday, June 29, AD 2012 8:08am

Semi-rhetorical question: All the talk is about Romney, and the news of the sudden windfall is certainly welcome. But shouldn’t the more pointed focus be on Congress? What’s the landscape there? If there’s a Romney administration but a 219-216 House or a 52-48 Senate, what’s the point? The onus needs to be on installing as large a GOP contingent as possible so that Weathervane has a prevailing wind to spin with.

Thoughts?

Ioannes
Ioannes
Friday, June 29, AD 2012 8:58am

Lol wk, indeed we must supply the weathervane with fair winds… Only 4 more in the senate I believe

cthemfly25
cthemfly25
Friday, June 29, AD 2012 9:05am

Donald—I wish to add another dimension to the political fallout which is none to pleasant to contemplate. The Roberts’ decision is not just flawed, not just vapid, but is of evil consequence if not design. He found that there was standing on a tax issue by declaring that it was not a tax issue for purposes of standing—no amount of legalistic construct can make sense of this. On the pathway to obamacare deliverance Roberts then legitimazes a strictly and exclusively punitive mandate as a tax (which is not an enumerated constitutional tax). He further joins a majority in declaring that congress was not empowered under the otherwise boundless Commerce Clause making obamacare unconstitutional for purposes of regulation but constitutional as a vague nefarious tax. He decoupled tax legitimacy from any enumerated power.

The worst part is that we fight the political battle to address this mess, Roberts’ opinion now stands as precedence—-a precedence far worse in its potential consequences than the obamacare political battle. It may take 20 years to overturn this creature of an opinon if the country is lucky……or if Obama wins this election, or for that matter any lefty in the future or any democratically controlled congress, will now be comforted with extraordinary power to tax anything at any time without regard for enumerated powers, or perhaps in the future regard for the bill of rights.

This decision is stunning in its poor reasoning, and one must conclude it had an intended purpose beyond the obamacare fight.

Foxfier
Admin
Friday, June 29, AD 2012 9:12am

Amazing how it’s always anonymous who goes for the “slit your wrists now, it’s hopeless” angle, isn’t it?

RL
RL
Friday, June 29, AD 2012 9:20am

There’s a lot of speculation about Roberts’ turnabout and most seem to attribute it to, for better or worse, heading off or preparing for something else coming down the pike along with public opinion w.r.t the court. I don’t know if justices really do that or not, but if it is the case, then I wonder if Roberts is looking to the Bishop’s case. The four good justices happen to be Catholic, the swing vote dingbat is Catholic and one of the liberals is Catholic and so far doesn’t seem to be as a ideologically driven leftist as the rest of the liberal wing. That case really has the making for a vote split upon Catholic lines. And while IMO, the obvious answer to the Constitutional question is to side with Bishops. However, there would surely be accusations of bias on the bench. Perhaps Roberts voting this way on ACA was to disarm those arguments.

bob
bob
Friday, June 29, AD 2012 9:20am

The power of mainstream American conservatives to rationalize their support for right-liberal politicians never ceases to amaze me. Man up, you abused spouses, and keep coming back for more abuse!

And they do. For decades, “conservatives” just keep coming back for more. Which is why the country keeps on getting more.

Quit complaining and man up! This is no time to withdraw your support from your alcoholic Uncle GOP! If you just keep on acting codependent, the country will eventually sober up.

Talk about abuse of the concept “hope”.

tess s.
tess s.
Friday, June 29, AD 2012 9:26am

Above may well be true except for the fact that President Obama is a thief and a lier. He has the ability to steal the election and the thirst for power. Recently, I became aware that he has arranged for the election totals of 17 states to be sent directly to a company in Spain to be tallied—-with no oversight; no guarantee of election tampering or fraud.
Obama has tentacles of corruption spread vast and wide and is being allowed to further spread their reach unchecked. Where are the other branches of government—-complicit? Are they afraid to scrutinize and do their job? Look what is being done to the Sheriff in Arizona simply because he wants to see an authentic birth certificate? Eligibility to vote in America today does not require a valid ID?
As a side note, does he still have his blackberry?

Pinky
Pinky
Friday, June 29, AD 2012 9:51am

Nobody’s even entertaining the theory that Roberts made the decision he did because he thought it was right. I’m not saying he was right, but should we be so quick to savage people who we perceive as turning against us? I’ve never liked the idea of replacing activist left-wing judges with activist right-wing judges, and it looks to me like Roberts took an aggressively non-activist stance. I dunno. I haven’t read it yet.

As to the original point of the article, that kind of despair smacks of political determinism. That’s just unseemly.

Dante alighieri
Admin
Friday, June 29, AD 2012 10:07am

Nobody’s even entertaining the theory that Roberts made the decision he did because he thought it was right.

It’s possible that he rendered the decision he did because he thought it was the proper thing to do from a constitutional standpoint, but based on the language of the dissent and Roberts’ own about-face halfway through his own ruling it’s fairly unlikely.

it looks to me like Roberts took an aggressively non-activist stance.

Except he actually ended up doing just the opposite. By transforming the justification from the commerce clause to the taxing power, and by also engineering a rather muddled compromise on the Medicaid mandate, he essentially legislated from the bench. His ruling was in fact more “activist” than even the four liberals on the Court.

trackback
Friday, June 29, AD 2012 10:18am

[…] Man Up Catholics! – Donald R. McClarey, The American Catholic […]

tess s.
tess s.
Friday, June 29, AD 2012 10:21am

Thanks for the feedback D. McClarey. Please google SKYTL and SOE merger and let me know if in your opinion the information is still not credible. Your objective evaluation of the facts presented will ease my concern that election fraud will insure another 4 years of President Obama.

T. Shaw
T. Shaw
Friday, June 29, AD 2012 10:27am

My advice:

Drink heavily.

It works for me.

Did you think you would live forever?

Does the UK already operate Obamacare-like death panels? UK Professor Patrick Pullicino, quoted Daily Mail synopsis: Top doctor’s chilling claim: The NHS kills off 130,000 elderly patients every year
• Professor says doctors use ‘death pathway’ to euthenasia of the elderly
• Treatment on average brings a patient to death in 33 hours
• Around 29 per cent of patients that die in hospital are on controversial ‘care pathway’
• Pensioner admitted to hospital given treatment by doctor on weekend shift

Read more: http://www.dailymail.co.uk/news/article-2161869/Top-doctors-chilling-claim-The-NHS-kills-130-000-elderly-patients-year.html#ixzz1yLo1yfRc

bob
bob
Friday, June 29, AD 2012 10:28am

Get to that liquor store and buy the alcoholic another drink, Don. After all it has worked so well up to now, and anyway that’s just what manly men do.

bob
bob
Friday, June 29, AD 2012 10:52am

TOGA party in Tampa, open bar, buy tickets for all your alcoholic friends!

Paul D.
Paul D.
Friday, June 29, AD 2012 11:09am

I tend to think Roberts tries to be an honorable man and this is all the more reason why the decision seems incongruous with a man of conservative judicial temperament.

But way of analogy, motorcycle riders learn early in their training that one of the most deadly mistakes that can be made is the phenomenon known as target “fixation”. A rider becomes target fixated when despite trying to avoid a collision by all means, the rider stares at an oncoming vehicle and consequently steers directly into its path.

In much the same way it appears in Roberts debatable attempt to remain apolitical and not legislate from the bench that his target fixation caused the very thing he was trying so much to avoid. And we are left with an absolute travesty and wreck of jurisprudence.

bob
bob
Friday, June 29, AD 2012 11:15am

Was Roberts’ pro bono work for the homosexual lobby before his nomination an attempt to remain “apolitical”?

I guess it is true what they say: neither the alcoholic nor the codependent spouse will reform until they hit bottom. It is always a challenge figuring out just where “bottom” is going to be.

Paul D.
Paul D.
Friday, June 29, AD 2012 11:30am

Unfortunately target fixation in law can be repeated over and over again by the same jurist.

In most other cases the mistake is self-correcting by reason of death.

Penguins Fan
Penguins Fan
Friday, June 29, AD 2012 11:32am

Chile is looking good to me now. The señora already speaks Spanish and most people there are Catholic.

Poland looks pretty good, too. I know just a few Polish words from my childhood, but, again, their currency is stable and they are mostly Catholic.

Having said that, I am not giving up. I refuse to cede this nation to the stupid among us. The stupid have pressed and pressed and pressed for what they want for almost a century. It does not mean they cannot be defeated. I cannot fathom any possibility where this ruling helps Obumbler or his pathetic socialist party. Did Pelayo quit? Did Don Juan of Austria quit? Did Queen Isabella quit? Did John Sobieski quit? Did George Washington quit?

Squishy Republicans become squishy because the rank and file conservatives are usually so busy raising families, managing small businesses and doing similar things. We cannot just elect a GOP majority. We the people must hold their feet to the fire.

It is our only option. Throw the bums out and put the fear of God into their replacements. There is no other countermeasure for Potomac fever.

Pinky
Pinky
Friday, June 29, AD 2012 11:38am

Oh, and Don, isn’t opium just the best thing ever? Natural, synthetic, it doesn’t matter, it’s wonderful stuff.

Pinky
Pinky
Friday, June 29, AD 2012 11:53am

I was referring to the kidney stone and pain meds. Hope everything’s better.

T. Shaw
T. Shaw
Friday, June 29, AD 2012 11:53am

Penguins Fan:

A co-worker who vacationed in Chile told me it looks good for emigartion. The Chilean gov took Milton Friedman’s (RIP) advice and privatized the social security ponzi scheme. Chile’s fiscal condition is nearly ideal compared to the debt and entitlement maelstrom the USA is rapidly approaching.

Canada is closer. Now, assuming the worst and Obamacare becomes your health, there will be no reason to not emigrate to Canada. Although not as fiscally sane as Chile, Canada’s fiscal prospects are far more sustainable than the fiscal catastrophe confronting the USA.

Chris Pennington
Chris Pennington
Friday, June 29, AD 2012 12:29pm

This sums it up completely:

Please Stop – Justice Roberts Is Not Being Clever

If I see one more person on the internets suggest that perhaps Justice Roberts is being clever and outwitted the Dems by using a tax justification instead of the Commerce Clause I will scream.

Stop. Please stop.

http://www.creativeminorityreport.com/2012/06/please-stop-justice-roberts-is-not.html

Chris Pennington
Chris Pennington
Friday, June 29, AD 2012 12:31pm

I am actually questioning the decision to try to bear children at this point.

Wow, as my 6 year old son likes to say:

Man, take a chill pill…..

DarwinCatholic
Friday, June 29, AD 2012 12:58pm

Thanks for the dose of sanity, Don. (And glad you’re feeling better.)

Mike Petrik
Mike Petrik
Friday, June 29, AD 2012 1:12pm

As a tax lawyer concentrating in Commerce Clause issues, I think Roberts’ opinion has more merit than most visitors of the fine Blog are willing to give it. The fact of the matter is that Congress may constitutionally impose a tax in the amount of the mandate’s associated “penalty” that can be reduced by a credit for purchased health insurance. Such mechanisms are commonplace in tax law, employed as deliberate incentives. In substance this is what Congress did, and all Roberts does is acknowledge this and correctly note that what Congress wishes to call something is not dispositive. Indeed, for months the Obama Administration stubbornly refused to yield to conservative demands that it admit that the penalty is a tax and the mandate is therefore a tax increase.

This is not to say that Roberts’ opinion is beyond legitimate criticism. First, the legal distinction between a tax and a penalty is one that is well-developed in American tax law, and Roberts does a poor job of exploring it. In essence he simply concludes that because the characterization of this particular levy is a close call (probably true) the Court should be willing to treat it as a tax in order to preserve the Act’s constitutionality, relying on the time-honored (and conservative) doctrine that when the meaning of legislation is in doubt it should construed in a manner that preserves its constitutionality as long as reasonable. One weakness with Roberts’ application of this doctrine is that it is not clear that he is so much interpreting the statute charitably in order to preserve its constitutionality as he is neglecting to determine or apply a straightforward definition of “tax” under the Constitution. That said, the importance of this weakness is doubtful insomuch as it is doubtful that such an effort would have produced a definition that would not have embraced the levy at issue, especially if the examination is substantive.

The key to Roberts’ opinion is his decision to discard formalism in favor of substance. This decision is also open to criticism. First, to the extent it is grounded in the idea that such an interpretive approach is reasonable and necessary in in order to preserve the Act’s constitutionality, Roberts may be confusing (i) the very real obligation to interpret a statute’s substance in whatever reasonable way available to render it constitutional with (ii) a putative by unsupported obligation to select whatever reasonable interpretive approach (i.e., form versus substance) that is available to save the statute.

In the end, while Roberts’ opinion is not immune from criticism, such criticisms are both technical and not free from doubt. Moreover, the decision’s lasting legacies are likely to be a more robust limitation on Congress’s ability to (i) use its Commerce Clause power to enact what is substantively police power legislation and (ii) use its spending power to coerce states to conform to its will. These legacies may well prove more important that the Act’s survival (for the moment), as odious as that Act may be.

Finally, folks should remember that when confirmed, Roberts emphasized the importance he attached to deferring to legislative action. Accordingly, his opinion should not be considered all that surprising.

P.S. Hang in there, Don.

Paul D.
Paul D.
Friday, June 29, AD 2012 1:42pm

“The fact of the matter is that Congress may constitutionally impose a tax in the amount of the mandate’s associated “penalty” that can be reduced by a credit for purchased health insurance.”

Is this contextually true, Mike? I thought that the entire novelty of the matter was that even in the form of a tax, Congress had never imposed a tax on a non-transaction.

Mike Petrik
Mike Petrik
Friday, June 29, AD 2012 2:05pm

You bet it is true. The Constitution even expressly contemplates the possiblity of a capitation (i.e., head) tax. The only expressed limits on Congressional taxing power are apportionment and uniformity requirements, though all constitutional scholars acknowledge that the power to tax may be constrained by the Bill of Rights. For instance, a direct tax on speech would be invalid.

No, the Act’s presumed novelty rested on the assumption that it represented an exercise of Congress’s commerce clause power, which many scholars hypothesized could not be extended to include requiring an activity, even in commerce. Roberts merely recast the mandate as being not only an insurance requirement subject to penalty but a tax incentive to encourage insurance. It is a line-drawing contest over which reasonable lawyers could disagree. Roberts ultimately decided that it could go either way, but gave greater weight to the doctrine requiring courts to interpret statutes in a manner that would render them valid than to the fact that Congress chose to call the levy a penalty rather than tax.

Dante alighieri
Admin
Friday, June 29, AD 2012 2:37pm

Except the Chief Justice himself expressly states that this is not a capitation.

All given examples of tax incentives are tax credits. There is a distinction between a credit and a tax. Just because my neighbor who rents and makes the same amount of money as me pays higher taxes (due to my tax burden being lighter because of the homeowner credit) doesn’t mean he is being taxed for renting. The novelty here is that for the first time a person is taxed for not doing something.

This is not a tax incentive. It’s a tax.

anzlyne
anzlyne
Friday, June 29, AD 2012 2:40pm

Thanks Mike Petrik.
” lasting legacies are likely to be a more robust limitation on Congress’s ability to (i) use its Commerce Clause power to enact what is substantively police power legislation and (ii) use its spending power to coerce states to conform to its will. These legacies may well prove more important that the Act’s survival (for the moment), as odious as that Act may be”
I think the ball is in the people’s court now (maybe a baad choice of words.) but that robust limitation has to ultimately come from us, n’est ce pas?

Paul D.
Paul D.
Friday, June 29, AD 2012 2:42pm

Mike, where would be a good place to start in researching this?

“Roberts merely recast the mandate as being not only an insurance requirement subject to penalty but a tax incentive to encourage insurance.”

Tax incentives such as lower rates, tax credits, etc are one thing. Conflating tax incentives such as this with tax “incentives” of punishing non-activity appears to be separate question. Any examples that would shed light on this from your perspective?

Mike Petrik
Mike Petrik
Friday, June 29, AD 2012 2:48pm

Paul,

Unfortunately for you, I agree. In substance the mandate’s “penalty” can be fairly described as a tax, which is precisely why Roberts upheld Congress’s authority under its taxing power. The fact that this tax can be avoided by receiving credit for insurance is precisely an incentive credit. The fact that this tax is not a capitation is not relevant at all. My reference to capitation was only in response to Paul’s question whether taxes could be levied on inactivity, which is made plain by the fact that even a capitation tax would be constitutional. Paul, if you are claiming that a tax cannot be levied for doing nothing, then you have a mighty idiosyncratic and non-literal understanding of the constitution.

And there was no sophistry in my post, nor in Roberts’ opinion; though I concede my sense is uncommon!

Dante alighieri
Admin
Friday, June 29, AD 2012 2:49pm

Mark Levin shreds the idea that the commerce clause limitation will have any lasting import. Also, as I noted yesterday, the Court did not do anything drastically different in this regards than it already had previously under the Rehnquist regime.

I understand the desire to be optimistic and find silver linings. But as Pat Archbold said, please stop.

I just want to add Scott Wilson’s comment from that Mark Levin post:

Whatever it is or isn’t, probably doesn’t matter practically, for even it was part of the opinion’s central legal holding, you’d have to be delusional to believe that a precedent establishing a limiting principal on the Commerce Clause would mean anything to any future Court with a liberal majority. It wouldn’t.
However, you can bet grandma’s silver that the broad reading of the Tax Clause will be cited as supporting precedent for every Court from here until the Chinese finally foreclose on our sorry behinds.

Dante alighieri
Admin
Friday, June 29, AD 2012 2:55pm

The fact that this tax can be avoided by receiving credit for insurance is precisely an incentive credit.

So I can avoid being taxed for not buying a car by buying a car? I can avoid being taxed for not buying broccoli by buying broccoli? Sense, this makes none.

Again, there is nothing at all normal with applying a tax to a non-activity and saying it’s merely an incentive. The only way this would work is if all of our taxes were raised by whatever amount the penalty is, and then we receive a credit for purchasing insurance. Now you might say that the two ways of going about this are substantively the same, but in fact they are two different approaches. One of them has the good fortune of being constitutional.

Dante alighieri
Admin
Friday, June 29, AD 2012 2:57pm

Again, as I said in my analysis yesterday, there is absolutely nothing in the plain constitutional language that anticipates this kind of a selective tax, capitation or no.

Mike Petrik
Mike Petrik
Friday, June 29, AD 2012 2:58pm

I apologize for my apaulling lack of precision. Please understand that my last post was directed to Paul Z.

Paul B,
Justice Roberts recasting of the mandate can best be understood by simply reading his opinion, which is what I did. I’m sure there are some good explications out there, but I have not relied on them.
It is true that a penalty and a tax are not the same thing, but the fact remains that many levies are close calls. There are literally hundreds of cases dealing with the distinction precisely because courts often have to draw lines in difficult cases, and these decisions all agree that the nomenclature, while relevant, is not dispositive. Basically, Roberts determined that because the levy operated exactly like a tax that could be reduced by a credit for the cost of insurance it operated like a tax coupled with an incentive credit. As I mentioned above, reasonable criticisms can be asserted against Roberts’ reasoning, but such criticisms are not so compelling that Roberts deserves to receive the invectives being launched.

Dante alighieri
Admin
Friday, June 29, AD 2012 3:02pm

I actually do agree with Mike that the tax/penalty distinction isn’t that clear-cut – it’s probably the least bad part of Roberts’ decision. My main issues are with his inconsistency (it’s a tax when it comes to the mandate, not a tax for purposes of the anti-Injunction act), the fact that all parties involved originally said it’s not a tax, and of course the dubiousness of taxing a non-activity.

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