Roberts' Folly

M2RB:  David Crosby

I thought I met a man
Who said he knew a man
Who knew what was going on
I was mistaken

Chief Justice John Roberts arriving at his " impregnable island fortress."

If a king is more interested in protecting his castle than his country, then he should abdicate.

What do Barack Obama and John Roberts have in common other than the fact that they both went to Harvard Law School?

They both took an oath to defend the Constitution and both have broken it.

One easy example for each:

Obama: Made recess appointments when the Senate could not possibly have been in recess pursuant to Article I, Section 9, the Appointments Clause, of the Constitution.

Roberts: Created a "tax" unlike the four permitted by Constitution (capitation, excise, income,and tariff).  Further, all taxes must originate as bills in the House of Representatives.   The penalty for not having insurance was, originally, a "tax."  Pointedly, the Democrats revised the language and created a "penalty" -- by name -- instead.  Roberts took it upon himself, using his legal divining rod, to "read into the law" what he believes the Democrats really had in mind and rewrote a law and a tax law at that.

The four taxes permitted by the Constitution:

Capitation:  A direct tax on a person or property, but must be apportioned amongst the states under the US Constitution.

Excise:  A tax triggered by a "taxable event" like a death or sale.

Income:  A tax on income.

Impost:  A duty or tariff on imports and exports imposed by the government.

In National Federation of Independent Business v Sebelius, the Court held that a "penalty" directly imposed upon individuals for failure to possess health insurance, though a tax for constitutional purposes, is not a direct tax.  The Court reasoned that the tax is not a capitation because not everyone will be required to pay it nor is it a tax on property, rather "it is triggered by specific circumstances."

It's not a direct tax per the Court and it's not an excise tax, income tax or tariff.  So, what is it?

Roberts' new "tax" is the equivalent of the Warren Court's discovery of a right to privacy in Griswold v Connecticut.

If John Roberts thought that his switch-in-time-that-saved-ObamaTax was going to make him beloved and his Court immune from criticism by the Legal Left and Progressives, in general, he was sadly mistaken.  His legal reasoning that the mandate penalty was a tax was specious and is apparent to those of us, who understand the law, whether on the Right, Left, or Centre.  His rulings on the Commerce Clause and Necessary & Proper Clause, as well as his acknowledgment that government's power is not unlimited nor is its ability to spend, are detested by those from whom he sought approval -- or, at least, a momentary respite from criticism.   Unless Chief Justice John Roberts becomes John Paul Stevens or Earl Warren, he will always be the "reactionary, radical, and conservative" Chief Justice, who presided over the Citizens' United Court.  Period.  Story.  End of.   If he believed otherwise, he is both naive and foolish.

Rather than protecting the reputation and integrity of the Court, his actions have undermined both and brought into question whether he has the judicial temperament and constitutional fidelity that warrants his remaining the Chief Justice of the United States of America.   If Chief Justice Roberts is more interested in upholding the "sanctity and reputation of the Court" than the Constitution, which he swore to defend, then he should resign. His role is not to protect the Court's reputation, but the Constitution and the people.

At Constitutionalist level, he had an opportunity to "mold a new reality" where the Federal government was reminded that it was one with limited powers whether such concerns the Commerce and Necessary & Proper Clauses or taxation and penalisation and that the people are primary and the government subservient. Instead, sadly, his decision to uphold this monstrosity allows for a fundamental change in the relationship between government and citizen. No longer must Washington govern with the consent of ‘We the People.” It is enough for the Federal government just to slap a tax label on something in order to be able to pummel, threaten, and coerce the population into submission and we have a “Conservative” Justice of the Supreme Court to thank for it.

When you get right down to it, one must ask:  If this is where we are going as a country, then what, exactly, was the point of the last 236 years? 

Sophie

Laughing - David Crosby

I thought I met a man
Who said he knew a man
Who knew what was going on
I was mistaken
Only another stranger
That I knew

And I thought I had found a light
To guide me through
My night and all this darkness
I was mistaken
Only reflections of a shadow
That I saw

And I thought I'd seen someone
Who seemed at last
To know the truth
I was mistaken
Only a child laughing
In the sun
Ah, ah, ah...
In the sun...