RE: In Defense of John Roberts

My personal reactions to the Supreme Court decision yesterday have varied, but wherever I find myself at any given moment, I mainly still agree with what Carson Holloway said so well in his post “In Defense of John Roberts,” indeed it is mostly what I would have wanted to have said. I particularly liked this line:

But if you think the mandate is just so obviously beyond the scope of the taxing power that only a knave or a fool would think otherwise, then I think you have drunk the Kool Aid.

I am certainly no lawyer and I still don’t play one on TV, but from the point of view of someone who argues a lot with people on both sides of the political aisle and as someone who thinks that the democratic process is a good thing, I find myself wanting to agree with Roberts’ decision more than not.

I have listened to John Yoo and Richard Epstein about why this is such a poor decision. They could be absolutely right that this is an unprecedented argument on the part of the Chief Justice. But that it’s unprecedented doesn’t convince me that it is totally unreasonable.

To my simple mind, addled no doubt by years of reading theology instead of law, Roberts asks whether or not Congress could have meant this to be a tax even though they didn’t want to call it a tax. In answer to that question Roberts says yes… and so do I.

I know, I know Obama insisted it wasn’t a tax and Pelosi and the rest said it wasn’t a tax. Sure, sure, I understand. But they’re politicians. They and their partisan goons had to lie through their teeth in order to get senators like my own Ben Nelson of Nebraska to vote for the damnable thing. Why are we shocked – shocked! even – that politicians would lie about a bill in order to get it passed? Are you serious, are you serious?

Scalia et al. say that the Court can’t make the bill before them say something it doesn’t say. I agree with that too. But in the end, it strikes me as a matter of legal opinion as to whether or not this bill’s language can be interpreted to mean “tax” when it says “penalty” or not. Scalia et al. say no. Roberts and his group say yes. I don’t know, but like I say, I believe it is possible that the administration knew what they were doing.

The Democratic Party knew that this was a tax. They knew it all along and they wanted to hide that fact from the beginning. As George Stephanopoulos (so glad his name is on spell-check) said to the President, the dictionary definition of “tax” shows that this is a tax. The protestations of the President are the just the mealy-mouthed jawing of a politician selling something.

So if it can be considered a tax, is it so wrong for Roberts to then say that it is not the Supreme Court’s job to determine whether a tax is a good idea or a bad idea?

I also understand the argument that this is horrible decision by Roberts because if the Congress can tax us for inactivity, then it they can tax us for anything. But to that I just have to say that I don’t know about you, but I’ve been free for some time now from the illusion that the State can’t tax us for anything. Again, I know I’m no lawyer and certainly not a Constitutional expert, but I always figured that, if they wanted to, Congress could pass a law that taxed my nose hairs. But this leads me to my final point for which you dear readers are probably grateful.

What I like about the Roberts decision is that given Congress’ power to tax, it is not up to the Supreme Court to decide for us whether it’s a good idea or not. It is not up to the Court to decide that this tax is better economic policy or poorer social policy. Whether a tax is a good idea or not ought to be part of the legislative process, a process you and I are in control of by voting for or against the nimrods who say Congress can tax my nose hairs and my inactivity. So bring it on. Let’s vote out the bums and overturn this horrible law.



  • John

    What I like about what Roberts did: He said the Commerce Clause has limits. This is the first time in a long time SCOTUS has said that, at least that I can recall (and at least on such a landmark case). He also recognized the limits of judicial power in so far as the courts are not the place to rid the country of unwise political decisions. He essentially said, ‘the voters elected these folks, they got it.’ While I don’t agree with the outcome, his logic and his arguments from the viewpoint of jurisprudence are sound. The only exception, I’d say, is his tax argument. If the party before the court is NOT making that argument, and in fact has gone to great length to say that’s not what it is, it certainly is unusual for a court to adopt it sua sponte. And as Scalia pointed out, it’s not contemplated in the law itself.

  • Francis Wippel

    I’m sorry, but I can’t share the sentiments about John Roberts expressed here. The Obama administration was emphatic that this was not a tax, and the bill was not submitted as a tax. If it had been, it never would have passed Congress; this point cannot be over-emphasized.

    It was not up to Roberts (or any other justice on the Court) to essentially re-write the legislation so that it would be Constitutional. Roberts’ duty is to determine whether or not the laws before the court are, as actually written (not as the justices wish they had been written), Constitutional. It is NOT up to Roberts to fix the problems contained in the legislation; that is the job of Congress.

    Roberts made the decision to legislate from the bench by determining that this mandate could stand as a tax. The Obama administration insisted that it had the right, under the Commerce clause, to place this mandate on the people. That is how the law was presented and argued, and how it should have been ruled upon.

    • Omar Gutierrez

      Francis, I felt the same way at first until I found out that the Obama admin actually did argue it was a tax. This was their third argument, and no doubt a desperate one just in case the other two didn’t work. What’s more, don’t forget that even though the act didn’t say it was a tax, Roberts based his interpretation at least in part on the fact that this “penalty” would be enforced by the IRS. So the question is not whether Roberts “rewrote” the law. I’d agree with you that he can’t do that. The question is whether or not one could interpret the language as it is written as a tax given how it is written. I don’t think it is impossible to see it that way. So actually the Obama administration did argue it was a tax after they argued it wasn’t a tax that triggered the anti-injunction act…or at least that’s what I’ve been told.

      • FrancisWippel


        Thanks for your response. If what you are saying is true, I have to wonder why the Court would have even allowed the federal government to take both sides of this argument (tax vs. mandate). It’s hard to lose a case in court when the court allows the plaintiff or defendant to take both sides of an issue. The fact that the SCOTUS endorsed this type of approach seems quite dangerous for anyone taking a case against the federal government to our nation’s highest court.

  • tz1

    Congress’ taxing powers are limited, otherwise instead of passing an ex-post facto law or bill of attainder, they can simply tax the same thing at an unpayable rate.

    Be careful. Are the Catholic Hospitals, EWTN, Stubenville College now free to simply not pay for insurance under the HHS Mandate (or pay for insurance that doesn’t include anything objectionable), and not be actually fined for it, but “it is just a tax”?

    I am also disgusted at all the Catholics who have NO PROBLEM WHATSOVER with the government putting a gun to my head and say buy insurance (from an approved state cartel) or pay a tax. So what, it isn’t a “Religious Liberty Issue”. They also have no problem having people watch naked images of them including their children going through airports or being “patted down” in a way that would be criminal sexual conduct anywhere else as modesty or purity apparently are also nota “Religious Liberty Issue”. Fortnight so we don’t have to pay for contraception. Call it what it is. Every other tyranny or even the abortion holocaust is below the radar. Where is the modern day Steven Langton who would advocate the ENTIRE Magna Charta from his Cathedral?

    If Medicare starts providing euthanasia services, are the Bishops and the rest going to tell everyone to stop paying the Medicare tax? Stop deducting it from paychecks?

    Can there be taxes on free speech?

    Remember Bob Jones University? 1983? You probably disagreed with their theology, but the result of the supreme court is that the IRS’s idea of “public policy” trumps any tax deductibility. If they don’t like your theology, you lose your tax exempt status. Maybe Hillsdale college can add something.

    I do hope the Catholic Church – every organization – loses its tax-exempt status. Then maybe it will start arguing for economic liberty.



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