The Great Roberts Ruse—Or Ruin?

The best take on that fateful Thursday came from Ed Morrissey, who quipped:

Now here is the truth: either Roberts is canny or he is a coward. Either he is a sly, patriotic Machiavellian or a frightened, loyalist turncoat. There is no third possibility.

Forget everything you read from any leftist chattering about “compromise,” “integrity,” “bipartisanship,” and “foregoing ideology.” These are code words which signal unconditional surrender to, and not compromise with, the progressive view.

Consider: just hours before Roberts revealed his enigma, we had Democratic Congresspeoples and lefty pundits thrusting towards microphones with dire warnings, “We better not see a 5-4 ruling driven by politics!” Uncoded, this meant, “They had better not vote against us, or else” and nothing more. For after witnessing the very 5-4 ruling they forecast would tear the Union asunder, they immediately suffered complete amnesia and were full of praise for Roberts’s Ruse.

If a ruse it was. The real question is into whose back did the Chief Justice slip his dagger? Charles Krauthammer, no slouch at fingering phonies, is certain sure Progressivism is now one of the walking dead. He called the Ruse “one of the great constitutional finesses of all time.” Krauthammer figured Roberts figured that—who exactly?—“we” did not want yet another “5 to 4 decision split along ideological lines that might be perceived as partisan and political.” The decision to re-write Obamacare as a tax to save lefties dentist bills that would have come from gnashing their teeth over an overturn, while simultaneously squashing the attempt to expand the Commerce Clause, “draws the line against the inexorable decades-old expansion of congressional power.”

George Will agrees. “Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance”. Will imagines Roberts behind the Court’s arras watching New York Times’ reporters jigging on the Court steps while rubbing his hands together and saying quietly, “Heh, heh, heh.” If only Roberts had a moustache!

“This victory”—yes, victory—“will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.”

In favor of this favorable interpretation we have Roberts himself. He did win the right to write the majority opinion, because Roberts knew (we all did) that four of the Justices would have voted to uphold any law short of a Constitutional amendment declaring Obama President for life. He knew that three of the justices saw Obamacare for what it was and were poised to strike it down. He, like progressives chanting “compromise”, apparently forgot that not one Republican voted for the law.

But never mind that. The words which convinced Krauthammer and others of the Ruse were words like these:

This case concerns two powers…which must be read carefully to avoid creating a general federal authority akin to the police power…Every day individuals do not do an infinite number of things. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and…empower Congress to make those decisions for him.

Under the Government’s logic, that authorizes Congress to use commerce power to compel citizens to act as Government would have them act…the Government’s logic would justify a mandatory purchase to solve almost any problem…The Framers gave Congress the power to regulate commerce, not to compel it…The Commerce Clause is not a general license to regulate an individual from cradle to grave…

These are strong, manly words, and sworn to not just by Roberts but by Sotomayor, Breyer, and Kagan, lefties all. (Ginsberg signed too, but then petulantly disavowed herself.) It surely appears as if the PBS crowd had just received a dramatic dressing down. Krauthammer and others thus believe that progressives, happy with the immediate benefit of taking over one-sixth (or whatever) of the economy, are also now chastened and will not attempt such boldness in the future.

John Yoo says bollocks to that. In today’s Wall Street Journal, he says that progressives had their fingers in their ears saying “Yeah, yeah, yeah” while receiving their lecture. No lessons learned here. Yoo likens Roberts to Republican Chief Justice Charles Evans Hughes who whimpered whenever then president FDR threw a tantrum. Against his conscience, but afeared of being disparaged in the press and concerned about the legacy of the Court, Hughes hewed to the New Deal line and legitimized that first great increase in government power. And now Roberts, sharing Hughes’s timid temperament, has done the same and “sacrificed fidelity to the Constitution’s original meaning in order to repel an attack on the court.”

And it’s even worse:

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further.

Let us pray that Yoo, smart as he is, is wrong and that Krauthammer, just as sharp as Yoo but less gloomy, is right.

18 Comments

  1. As the decision sinks in, and as I read more attempts to sugar coat what Roberts did, reality intrudes more and more. Can anyone say it would not have been easier to repair health care insurance, etc., if this absurd 2700 page law had been obliterated? To get rid of it now is a massive undertaking, and it’s a one-time deal: either Republicans sweep, run the table in November, or Obamacare, like every other federal intrusion, will take ineluctable root. I know some people are upset, but are they that upset?

    Roberts’s reasoning was contortionistic. He wanted a specific outcome, for whatever reason, and, technically, he rewrote the law to line it all up. There is no victory here for limited government. If Roberts believes that, he’s a fool–in addition to being a coward. And that’s what he is: a coward. This is a staggeringly bad court decision; heck, it makes Kelo look tempered.

    Almost 20% of our economy, in the hands of progressive bureaucrats. The more I parse this decision, the gloomier I get.

  2. “There is no third possibility”

    Not even if he’s prone to deciding by coin toss?

    I notice that Yoo has the tacit assumption The O will be reelected.

    My impression is that the decision lines up with the general sentiment. IOW: the for against ratio is around 50/50. The estimate of uninsured Americans is around 40% IIRC. Of those, a hard to find number of them are exempt. The rest probably don’t care one way or the other. At least not enough for this to become an issue in November.

    The Democrats got a tax passed without calling it a tax. The feel-gooders in favor of this are almost all likely exempt themselves.

    Looks like we’ll be stuck with this and suffer in the future from the precedent. The slippery slope got steeper.

  3. I predicted that the Supremes would not declare Obama care unconstitutional but rather come out with a ruling that made this abominable legislation far worse. In my lifetime this is what the Supremes have done. They either split so closely that no one really knows what is or is not constitutional or worse they cut the baby in half and throw out some part of a unconstitutional law while leaving the most egregious part intact. But this time the Supremes made everything worse.

    If congress is able to do the best possible thing, that is to over turn all of Obamacare, the government will in the meantime have spent 100’s of billions to implement it (and pay off political cronies) that we will never get back. This while we are going bankrupt and unable to fund real needs. It will also have created at least four years of total confusion for employers, insurers and care givers causing some of them to go out of business and many of them to lose money and have to reduce services to American citizens. And lastly it will create a mish-mash of regulations, expired or retracted regulations, confused regulators and situations where patients die or who’s illness becomes worse simply because of the confusion this law and the repeal created.

    If congress, the president and the Supremes were to have gotten together three years ago over cocktails and pondered how they could totally destroy the worlds best healthcare system it is doubtful that even the most devious mind could have come up with this legal morass and regulatory disaster.

    The Supremes could have prevented most of this with a clean ruling that the entire bill was unconstitutional. It also would have set a clear precident limiting the federal power to control every aspect of our lives. But it appears that instead they preferred obfuscation, judicial legislation and constitutional destruction.

  4. I’d never heard of John Yoo before reading this, though I must say we’re thinking many of the same things. Justice Roberts protecting the court from leftist assault at the expense of doing his job, wins him no points with me. If he rules correctly, the leftist will always assault.

    We already suffer the entire “liberal wing” of the court that we can depend on to fail to do the job of a USSC Justice: They choose to substitute their personal feelings and non-constitutional precedent to to interpret United States law. This makes them wholly unqualified, lacking the judgement (Instead, we get “a wise Latina’s” slant) or the integrity (Kagan should have recused herself) to serve in the positions they now hold for life. That is my humble opinion.

    I think chief justice Roberts out-thought himself instead of just doing his job. I think Dr. Krauthammer, though I respect him greatly, is responding to that.

    Bottom line: I don’t want Obama, Reid, Pelosi, or Roberts using semantics and nuance in an attempt to control my commercial, or private behavior.

    I just want them to do their jobs.

  5. Roberts may some day regret his decision to put Death Panels in charge of rationing the health care of seniors like himself. Maybe he can find a backstreet former abortion doctor who will treat him illegally for cash because the gummit “health” system has cut him off to die.

  6. What exactly would have been wrong with getting rid of this monstrosity by a 5-4 “partisan vote?” Will we now have a less partison political process; less polarized society; and a more assured economic future.

  7. No matter what Roberts thought he was doing, the facts are that the law still stands, a threat to the nation’s finances and a threat to the health care of everyone who lives here, and whatever fine strokes he may have stated he didn’t take anything away from the Commerce Clause that he didn’t give right back with the power to tax–and future liberals on the Court will just ignore and overturn his fine strokes, anyway, because that is what liberals do–overturn precedent when they want to and scream about how holy it is when they don’t. Yoo is far more correct than Krauthammer or Will.

    Plus, he made made a mish-mash of Federal grants law.

    The kindest interpretation is that Roberts really just believes what he wrote and he’s not as smart as he thin ks he is. The next kindest brought a brief to a gunfight.

  8. Liberty is a mirage. It lasted about 150 years. Compare it to the number of years of documented human history and you have to conclude that the empirical evidence indicates that for one reason or another the preffered model of social structure is a form of bondage.

  9. Hi,

    It has been a while since I posted here.

    I find it amazing how some people turned so harshly against Roberts as if he was a traitor to the nation.

    «Obamacare» changes nothing for people who already had health insurance except maybe paying less for it, and more than 10 million peoples will receive refund check this year because insurance company spent to much on bonuses. Is there anyone against lower cost for health care?

    But it does change a lot of things for people with pre-existing condition, younger people who where kicked of their parent health insurance as they turned 18. It also change a lot for people who paid their insurance only to be dropped off once they got sick. Is their anyone who think that this was a good thing?

    Finally, the individual mandate is accompanied by no penalty what so ever for anyone who doesn’t buy insurance or cannot afford it. Lawrence O’donnel explain it very clearly on his show.

    Also anyone can explain how and why health care per capita was twice as high in the USA (higher than 7000$ per person) than in any other country with 100% public system (less than 3300$ per person)?

  10. @Uncle mike

    The «death panel» threat has been debunked. First, the portion of the bill that was referred too as the death panel was put forward by a republican in the first place. Second, it is not part of the law that has been passed in congress. And third, what was referred to as death panel was really to have the consultation with a doctor paid when someone was to do his living will. The doctor had no say in the choice of a patient to be revived or not.

  11. @Sylvain Allard

    There exists rationing in healthcare. Today it is based on a patients ability to pay to some extent in the US model.

    Under a government run plan, the rationing isn’t in control of the patient, but the government. Who is going to get rationed first? This is where the concept of “death panels” can still be applied, although it’s slightly hyperbolic.

  12. @Sylvain Allard

    «Obamacare» changes nothing for people who already had health insurance except maybe paying less for it, and more than 10 million peoples will receive refund check this year because insurance company spent to much on bonuses. Is there anyone against lower cost for health care?

    Incorrect. Paying MORE for it. I don’t know if you have Health Insurance in the US, but since Obamacare was voted in, premiums have increased. What are insurance companies going to do to cover those with pre-existing conditions? Charge more, of course:

    1. Insurance costs $5000 a year (made up number)
    2. Mandate “tax” costs $1000 a year (overestimated number)
    3. I don’t have insurance, then costs me $4000 per year less to not get insurance.

    The insurance companies will charge more to cover that scenario above and they will charge more for taking pre-existing conditions as well. There’s still the “well, if you break a leg, you have to wait for the medical insurance to kick in.” But for really expensive, slow moving things like cancer, there’s no risk for not having insurance.

    Please note, I am not arguing that this isn’t a good thing for the patient if they did not have health insurance, but it is not a cost lowering measure.

    Finally, the individual mandate is accompanied by no penalty what so ever for anyone who doesn’t buy insurance or cannot afford it. Lawrence O’donnel explain it very clearly on his show.

    You mean, “and,” right?

    Also anyone can explain how and why health care per capita was twice as high in the USA (higher than 7000$ per person) than in any other country with 100% public system (less than 3300$ per person)?

    Administrative waste is a huge cost. There is over 10% waste that can be improved upon. There are many other factors as well. Having the “latest and greatest” is sometimes an unnecessary cost. For example, there is a new medical facility in my neighborhood that has very nice rooms, each with a full nursing station (weight, height, blood pressure, etc) that they normally only have one of per X number of rooms. Did they need that? No. Things like that drive up costs as well.

    You could say the same thing about education, though.

  13. So, it didn’t work right with the “quote” tags I used… please ignore the above post.

    @Sylvain Allard

    >>>>«Obamacare» changes nothing for people who already had health insurance except maybe paying less for it, and more than 10 million peoples will receive refund check this year because insurance company spent to much on bonuses. Is there anyone against lower cost for health care?

    Incorrect. Paying MORE for it. I don’t know if you have Health Insurance in the US, but since Obamacare was voted in, premiums have increased. What are insurance companies going to do to cover those with pre-existing conditions? Charge more, of course:

    1. Insurance costs $5000 a year (made up number)
    2. Mandate “tax” costs $1000 a year (overestimated number)
    3. I don’t have insurance, then costs me $4000 per year less to not get insurance.

    The insurance companies will charge more to cover that scenario above and they will charge more for taking pre-existing conditions as well. There’s still the “well, if you break a leg, you have to wait for the medical insurance to kick in.” But for really expensive, slow moving things like cancer, there’s no risk for not having insurance.

    Please note, I am not arguing that this isn’t a good thing for the patient if they did not have health insurance, but it is not a cost lowering measure.

    >>>>Finally, the individual mandate is accompanied by no penalty what so ever for anyone who doesn’t buy insurance or cannot afford it. Lawrence O’donnel explain it very clearly on his show.

    You mean, “and,” right?

    >>>Also anyone can explain how and why health care per capita was twice as high in the USA (higher than 7000$ per person) than in any other country with 100% public system (less than 3300$ per person)?

    Administrative waste is a huge cost. There is over 10% waste that can be improved upon. There are many other factors as well. Having the “latest and greatest” is sometimes an unnecessary cost. For example, there is a new medical facility in my neighborhood that has very nice rooms, each with a full nursing station (weight, height, blood pressure, etc) that they normally only have one of per X number of rooms. Did they need that? No. Things like that drive up costs as well.

    You could say the same thing about education, though.

  14. ((Incorrect. Paying MORE for it. I don’t know if you have Health Insurance in the US, but since Obamacare was voted in, premiums have increased. What are insurance companies going to do to cover those with pre-existing conditions? Charge more, of course:

    1. Insurance costs $5000 a year (made up number)
    2. Mandate “tax” costs $1000 a year (overestimated number)
    3. I don’t have insurance, then costs me $4000 per year less to not get insurance.

    The insurance companies will charge more to cover that scenario above and they will charge more for taking pre-existing conditions as well. There’s still the “well, if you break a leg, you have to wait for the medical insurance to kick in.” But for really expensive, slow moving things like cancer, there’s no risk for not having insurance.

    Please note, I am not arguing that this isn’t a good thing for the patient if they did not have health insurance, but it is not a cost lowering measure.))

    The difference between the mandate in Romneycare and Obamacare is that in Romneycare you have to pay a taxe on your income taxed if you are not insured. With Obamacar you have an article that says that you have a penalty to not be insured, but when you go see what the penalty is, it says that the panalty is nothing.

    The USA system before Obamacare had a cost per capita greater than 7000$ per year. In Canada, which is 100% puclic the price per capita is less than 3500$ per year.

    Before Obamacare health insurance premium were already on the rise by hundreds of dollars every year.

    To take the broccolli analogy: Republican say that this law is like forcing people to buy broccolli, even if you don’t like it. The law doesn’t tell you what food you have to buy, but it tell you that you have to buy food. Just like everybody need food to survive, everybody need to go to the hospital several time in their life. So the law tells you that you need to pay a small amount each year to be sure that you will not have a huge bill in a single year.

  15. Wow. Ran across a post here that seemed kind of interesting–the one concerning what counts as the blink of an eye from the perspective of the universe…but then discovered that, in the main, it’s just more right-wing drivel. Amazing that you folks in the fever swamps are still willing to view Yoo favorably. On the bright side, it does make the craziness of the American right clearer.

    And, incidentally, the monumental ignorance about the ACA on display here is almost beyond belief… It’s hard not to suspect that conservatives realize that the ACA is a good idea. It’s the best explanation for their distortions about the act. If one sees a real weakness, one tends to attack it. Making sh*t up is *prima facie* evidence that you realize that you’ve got nothing to say about the facts.

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