June 29, 2012
The Limbo Court
In re the ACA ruling: first, let's look at the what of it. Yes, Roberts put a very tiny manacle on the progressive abuses of the Commerce Clause. That's verdant territory, however, flush with game. It undoes no past misdeeds, and future legislation will merely skirt the issue through skillful wording. This aspect is nothing to me.
As to the tax labeling, I understand Roberts strives to hew to the axiom that the Court should infer the constitutionality of legislation where possible. However, every bloody Democrat in the land screamed for a year that the mandate was a penalty, yes, but not a tax. Not a tax. Not a tax. If this unanimous approach to passage cannot be construed as the intent of the legislators, what does? Oh. Roberts' determination that no matter what a person says, he knows what they truly mean. As we all know, the Democrats were lying their fucking asses off the whole time, because plan B in the defense of the law, in court, was that if the Commerce Clause did not prevail, then, by God, that mandate is a tax. But Roberts was bound to construe their intent by their words and deeds at the time the legislation was debated and enacted.
This is akin to saying if I can't put my penis in you then you must put yourself around my penis. Same outcome, different causality.
As to the why of the opinion, we may never know. My instinct is that Roberts has long felt the Court was compromised, considered political. Mostly from Bush v Gore, but also from some of his own opinions, including Citizens United. He wanted to show some balance to fend off those charges. What I believe he failed to take into account was the fact that his opinion was so convoluted, his argument so weak, that it is seen by all sides as a political opinion. For better or worse. Going forward, I don't think anyone will ever view a Roberts opinion without viewing it through the prism of this weakness of his. No matter which side he comes down on for the rest of his tenure, and it will be lengthy, the losing side will always consider him a craven little fucker who caved to political pressure from one side of the aisle or the other.
Roberts was worried about his legacy. He has one now. I don't think he is going to like it. I didn't know white boys could bend so low to get under the limbo stick, but Jack Roberts be nimble and be quick. Those skills just won't serve him well in the years ahead.
Another thing: if Roberts thought this would ingratiate him with progressives, and get him invited to the right cocktail parties, he's wrong. The left will still hate him. He's a Republican. And now the Republicans hate him, too. No more cocktail parties for him. I'm sure he doesn't care now, but he will begin to when his wife starts carping on him like the goddam Furies because she is staying home all the time, a dirty Cinderella, missing the parties. John should enjoy his children, because he won't be having any more.
Having said that, with a bit of the tongue in cheek (no tongue in any cheek for you, John!) the greatest tragedy of this fiasco is the betrayal of his fellow travelers. Thomas, Scalia, Alito obviously feel betrayed. But when you have Tony Kennedy apoplectic at your liberal betrayal that's saying something. The tragedy is that the liberals will caucus, and the conservatives will caucus, but neither will invite Roberts to join them. He is nought but an untrustworthy spy to both camps. They will use him where necessary to bolster their positions, but he will not be trusted. He will never be trusted by another justice.
Any justice can make bad law. But it takes an especial weakling to so thoroughly destroy his credibility with his peers.
An aside: why is it when a 5-4 decision breaks left it is a sign of righteous, holy jurisprudence, but when it breaks right it is a sign of craven, venal politics?
"[W]hy is it when a 5-4 decision breaks left it is a sign of righteous, holy jurisprudence, but when it breaks right it is a sign of craven, venal politics?"
Because STFU.
Sincerely,
Your Betters
Because the dirty lying collectivist totalitarians in the Democrat-Media Complex said so.
Posted by: Randy Rager at June 29, 2012 8:22 PM> Roberts put a very tiny manacle on the
> progressive abuses of the Commerce Clause.
uh, no, that was dicta and is not binding.
Mysterian,
It is not dicta. It is Division 1 of the Court's opinion. The court reaches the tax issue only because the statute is invalid as an exercise of the Commerce power.
If I ever found myself on the same side of an issue as Elena Kagan, I would take a long look at myself in the mirror, and ask where my copy of the Constitution disappeared to.
Posted by: Jack Straw at June 30, 2012 1:19 PMI think I'll be looking for another to reside in, or a sail away on a Swan 65. Probably, sail away. Wanna come with me?
Posted by: Yabu at June 30, 2012 2:29 PM"Roberts was bound to construe their intent by their words and deeds at the time the legislation was debated and enacted."
Actually, no he isn't. Judges are only bound by the text of the law they're considering.
What you're referring to is a doctrine called legislative history, wherein judges considering things like floor debates and proposed amendments.
Folks like Larry Tribe love legislative history as a judicial practice. Conservatives generally don't. I once saw Scalia throw an awesome tantrum about legislative history. It was really fun to watch.
But Nino disappoints me. Just seven years ago, he voted with the majority that Congress can regulate self-grown, personal use medical marijuana under the Commerce Clause. But on Friday he specifically denied that health care constituted interstate commerce that Congress had jurisdiction over. Scalia used to be my favourite, but now he's a hack.
I could go on about the tax issue, but I don't want to put up another comment that's longer than the main post.
Posted by: skippystalin at June 30, 2012 4:12 PMActually, Skippy legislative history is what justices use to divine the intent of legislators where the waters are murky. When the legislators adamantly insist someone is one thing (a penalty) and NOT the other (a tax) the Court has no authority to uphold that legislation because it is in fact the other thing. They have no choice but to strike it down as unconstitutional, given the obvious intent of the legislators. It's back to square one.
You may argue if you wish, but you will not be able to bring any true precedent to bear. This is a new and shiny thing Roberts has created. You might find some precedents with vague similarities, but poppa's got a brand new bag here.
Posted by: Velociman at June 30, 2012 7:22 PMV-Man,
Yes, but if you want the judiciary to reference things like floor debate, they would likely find any number of Republican legislators in 2009-'10 referring to "massive tax increases" and "a half trillion in Medicare cuts."
That's why "textualist" judges refrain from using legislative history.
Posted by: skippystalin at July 1, 2012 12:41 AMBut it doesn't matter what the losers call something, does it?
Revel in your mordant schadenfreude, old boy. It is completely within your contrarian nature. I doubt you truly have an ethical opinion on this one way or the other. You just enjoy seeing oxen gored, souls troubled, and there will always be misery enough somewhere to sate that appetite.
Posted by: Velociman at July 1, 2012 10:50 AMSkippy's a useful tool for the Devil that is politics. If we were in his clutches, he'd force our eyes open and thread the lids to our eyebrows using cheap toothpicks and make us face the facts: there is NO difference between the GOP and the DNC except degrees of denial.
It's the political ruling class's world, we just live in it. We're like ants climbing the side of the jar with dreams of escape, only to be shook back down, again and again and again.
As the Russian dissident observed, after so many disappointments all that is left for the ants to do is sit around and tell jokes.
Posted by: Joan of Argghh! at July 1, 2012 12:33 PMV-Man,
I don't remember the GOP thinking of itself as "losers" in November of 2010. Do you? And if they're going to use the same argument this fall, that further undercuts your position.
On legislative history, Scalia joined the majority in Zedner v. United States except for one paragraph of Alito's decision involving legislative history. In that partial dissent, he wrote "The use of legislative history is illegitimate and ill advised in the interpretation of any statute."
And that's what he wrote when he was on the winning side. However, in Friday's Sebelius decision, he joined a dissent that used a quote from a New York Times from Harry Reid, going well beyond his objection to legislative history.
Look, I don't need to go next door for schadenfreude or to engage my "contrarian nature." I get more than enough opportunities for that from my own courts. But that presumes a knowledge of the Canadian Constitution and courts that I can't realistically expect anyone to have.
There is a reason that I've spent thirty years studying another country's politics and law, and that's that it was supposed to be better. And for a good long time it was.
Things like respect for precedent are supposed to fucking mean something. And if you look up the definition of "conservatism" in the dictionary, you'll see that it's defined as "tending to preserve established institutions" and "favouring gradual change."
Lookit, Scalia - and Republicans generally - didn't go insane when Congress and President used its spending power to impose a national 21 drinking age on the states. Without a Taxation power, there is no spending power. And without a spending power, you don't have South Dakota v. Dole, which Scalia (then the Court's most conservative member) was in the majority of.
"Conservatives" were fine with the ability of Congress to impose a national drinking age on the states and the people absent any constitutional authority, but not a health care plan.
How in the fuck are "conservatives" okay with a president using a very vague Commander-in-Chief power to use the NSA (in violation of the Fourth Amendment and FISA) to spy on Americans in violation of the law, but outraged by Congress asserting well-established Commerce and Taxation powers to establish national health care?
I disagree with both, but I don't know of very many other people who do. And that indicates a tyranny of party that your Founders not only didn't envision, but fought against.
So, yeah, I do have "an ethical position", and a pretty simple one: Don't pretend that you can expand state power, but the other can't or shouldn't.
My "ethical position" is against selective outrage. It's against Republicans being joyous over Medicare Part D, only to start carrying stupid Tea Party signs that say "Government hands off of Medicare" just a few years later.
My "ethical position" is calling out people who want to get rid of campaign finance laws (and I was always against any such laws) saying that disclosure would solve all of the corruption issues, until the realized that disclosure might lead to the White House saying bad things about Republican donors ... while STILL holding up George Soros as a figure of undue financial influence.
What scares the shit out of me is that - through dumb shit like primaries and populist nonsense - the United States is gradually turning itself into a parliamentary system and forcing the courts to join in on the fun through stupid litmus tests on both sides.
The Democrats used to be the populists, now Republicans are. What both sides ignore is that populism is contrary to the very idea of a republic, where you elect people to govern on your behalf because you're too busy to do it for yourself.
Wow, I've gotten overly broad, haven't I?
Posted by: skippystalin at July 1, 2012 3:14 PMAnd as for the "penalty vs. a tax" argument, here we go.
The debate between a tax and a penalty was useless and politically motivated on both sides. A penalty would be imposed and collected by the agency most responsible for implementing the law, in this case, Health and Human Services, not the Internal Revenue Service.
Let's say that you're an American company that has been found to have polluted, violated federal employment standards in some way or been involved in stock trading malfeasance. Never before has a penalty for those actions been imposed or collected by the IRS; it's always been the Department of Labor, the EPA or the SEC.
Nor is the size of a hypothetical penalty determined by factors such as income, marital status and the number of dependants of the person being so penalized. Usually, only the severity of the act being penalized is considered. But a progressive tax system is designed precisely that way.
This has all of the features of a tax and none of the features of a penalty. Whether Congress actually called it a tax is irrelevant. As I'm sure you're well aware, politicians - especially of the liberal variety - have a long and storied tradition of obfuscation. This, after all, is how the Korean and Vietnamese conflicts became "police actions" and not "fucking wars."
If it looks like a tax and acts like a tax there's a better than even chance that it'll be found to be a tax.
Moreover, the administration did argue on the Taxation power, both in the lower courts and in front of the Supremes. Nobody paid attention to that because it was universally thought that it would decided on the Commerce Clause. Congress, on the other hand, is not tasked with the duty of defending laws before the courts.
Watching Romney and the congressional GOP running against that tax, while also promising to maintain ObamaCare's more popular features (which happens to be most of them) is going to hilarious and potentially suicidal.
Posted by: skippystalin at July 1, 2012 6:51 PMSkippy, for such a keen observer you sure set up a lot of straw men. I don't know any conservatives who think NSA surveillance was a good idea, they abhor Medciare Part D, and none are George Bush fans. Hell, he was just Obama lite. I personally feel the Iraq War was an unnecessary nightmare. The Tea Parties didn't start with Obama. There were plenty of people already up in arms over Bush's deficit spending (along with the 2006 Democratic Congress), the bank bailouts, TARP, before Obama just ratcheted it up to warp 9. It isn't about political parties to the Tea Parties. It's about government elites of all political stripes raping the taxpayer for their personal fiefdoms. That includes farm subsidies, corporate welfare, and, yes, middle class welfare like mrtgage interest deductions. I think under the right circumstances (i.e. EVERYONE suffers equally) the former middle class would gladly give up mortgage deductions to be rid of all the other extraneous welfare. What is it with you libs and your straw men? You set up fake dichotomies like bowling pins, then are pleased you knocked a few down.
Posted by: Velociman at July 1, 2012 6:58 PMV-Man,
As for conservatives (by which I mean Republicans and their blogosphere toadies) and the NSA program, there was sure no shortage of them willing to defend it. Conservatives that opposed it were a rarity at the time. Back then all I heard about was presidential war powers and the "unitary executive theory."
The same's true of Medicare D, which almost all of the GOP conference, including Paul Ryan, voted for.
I don't know about you, but I can't name fifteen conservatives who prominently spoke out publicly against Bush's spending before 2007, and I can't get to that number without counting myself three times. Other than that, you've got Bruce Bartlett, James Bovard and Dave Stockman.
And given my stance eight years ago on Bush and against my own shopoholic Conservative government today, I don't take a back seat on fiscal conservatism to anyone.
And there just wasn't a Tea Party, or any organized public rallies, before the famous (and enormously fucking stupid) Santelli rant of February 2009, when Obama had been in office for about three weeks.
Here's all you need to know about the Santelli rant. It happened on the floor of the Chicago Mercantile Exchange, which probably wouldn't have existed without TARP. The very people cheering Santelli against bailouts on camera had just themselves been bailed out.
More importantly those fucking people still refuse to recognize that Bush's hard-core spending happened in his first term, not his second. The single largest driver of the current U.S deficit remains the tax cuts of '01 and '03, which cost $3.7 trillion over the last decade.
And for all of the shithead Erick Erickson ranting about the 47% percent that doesn't pay federal taxes (which is a lie. They take it in the neck on payroll taxes), you never hear much about them being removed from the rolls by the Reagan and Bush tax cuts, or that they were sold that way at the time.
Then there's the wars, Medicare D and No Child Left Behind, of which there was nary a whisper of protest, let alone FreedomWorks going nuts in public or building a cult around Glenn Beck. As a matter of fact, Dick Armey voted for most of that shit himself.
What scares the hell out of me about Romney and the congressional Republicans is that they're running around talking about "lowering rates and eliminating deductions" without saying WHICH deductions they'll lower.
That tells me that they won't eliminate ANY of them and count on the ridiculous fucking notion of "growing" their way out of a $15 trillion debt.
Christ, these people can't even eliminate something as easy as the ethanol subsidy. That being the case, how do you suppose they'll muster up the courage to go after mortgage interest deductibility?
I'll bet you anything right now, that they'll pass the tax cuts up front and never get around to deduction elimination. If they can't make the political sale on it now, there's no reason to believe that they'll be able to do it later. Or that they'll even try.
What will happen if the GOP wins the trifecta (which I can't see happening unless Obama starts his stump speech by praising Jerry Sandusky and fingering a five-year-old) is that they'll say, "Whew, we beat the socialist! Enjoy your tax cut and deficits don't matter anymore." And the Tea Party will vanish.
You know how I know that? Because it was Republican dogma for six fucking years - the only six years of the last sixty that Republicans controlled the executive and legislative branches - and Bush won a bigger margin on it during his re-election, despite his having explicitly promised to spend a trillion dollars more than John Kerry did.
If wanting sensible adults, like Gerald Ford or George H.W Bush back in charge makes me a "lib", I don't know what to tell you, sir.
But I will tell you what I'm in favor of: Cutting Social Security and Medicare eligibility now, for current retirees, increasing premiums and the retirement age to at least 70 immediately. There is no "shared sacrifice" if everyone over the age of 55 - who enjoyed the benefits of running up this kind of debt - is exempt from paying the price.
I'd also means-test all entitlement programs and get rid of pretty much every tax deduction. That means mortgage, charitable and political deductions. Only after that happens would I consider lowering rates. And any budget surpluses would go to debt repayment until a certain level of debt-to-GDP ratio was achieved before the rates were lowered.
At the end of each contract, federal government unions would be disbanded, one by one. Foreign policy would returned to what the Founders intended, which would pretty much take care of the defense budget.
In the absence of defence cuts, I'd insist on re-instituting the draft, with the only deferments going to those with an incapacitating physical disability, and maybe not even then. The cripples can do the desk jobs.
The Balanced Budget Amendment is also retarded because there are always too many loopholes in it. I'd propose a "PayGo" amendment that allows for for maybe a 20% debt to GDP debt, but with no loopholes for war or anything else.
But I know that isn't going to happen. That's why I actually hope that your government hits the "fiscal cliff" on January 1st. It's your country's last best hope.
Conservative enough for you?
Posted by: skippystalin at July 1, 2012 9:39 PMI also forgot that I'd eliminate the federal deduction for state and local taxes. You can't bitch about the size of government unless you know what you're actually paying for it.
For example, where I live, 10% of the federal payment goes to the province. The sales tax covers the rest.
If you really want to know what budget balancing looks like, I strongly suggest that everyone here look at what Canada did in the 90s.
Our Liberal government at the time cut almost EVERY department by 25% - not rate of growth spending , actual cuts - far more than your average Tea Partier is advocating. It hurt everyone, but not evenly. The poor and the middle-class were fucked.
And the only reason that the Liberal austerity worked was because the previous Progressive Conservative government raised a shit-ton of revenue through free trade with the United States and a national consumption tax (the GST.) The latter reduced the PCs from about 166 seats in Parliament to two.
Unlike most Americans, I know what it takes to balance a budget like yours. I know ow nasty it is. And no one in your country is willing to do it.
Posted by: skippystalin at July 1, 2012 10:52 PMI also forgot that I'd eliminate the federal deduction for state and local taxes. You can't bitch about the size of government unless you know what you're actually paying for it.
For example, where I live, 10% of the federal payment goes to the province. The sales tax covers the rest.
If you really want to know what budget balancing looks like, I strongly suggest that everyone here look at what Canada did in the 90s.
Our Liberal government at the time cut almost EVERY department by 25% - not rate of growth spending , actual cuts - far more than your average Tea Partier is advocating. It hurt everyone, but not evenly. The poor and the middle-class were fucked.
And the only reason that the Liberal austerity worked was because the previous Progressive Conservative government raised a shit-ton of revenue through free trade with the United States and a national consumption tax (the GST.) The latter reduced the PCs from about 166 seats in Parliament to two.
Unlike most Americans, I know what it takes to balance a budget like yours. I know ow nasty it is. And no one in your country is willing to do it.
Posted by: skippystalin at July 1, 2012 10:52 PMSkippy, do you mind if I put up a small post about a Supreme Court decision I disagree with (and, gee, that's not a very radical position) without escalating it into a referendum on Bush 43, Obama, the War on Terror, Keynesian economics, nation-state sovereign powers, Harriet Myers, the National Security Agency, and Dick Cheney's carotid artery? I think you're getting a little off-message.
But at least you haven't called me a racist. Yet.
Posted by: Velociman at July 2, 2012 7:19 PMSir, when have I ever called anyone a racist? Except for that one time about those ratfucking, no-good Swedes?
It's beneath me.
Posted by: skippystalin at July 2, 2012 7:55 PMWell, at least we agree on the filthy nature of the Borgian Scandis.
Posted by: Velociman at July 2, 2012 9:30 PMAdditionally say it could mean something rather than the goddess herself. So it is anybody's reckon.
Posted by: MCM リュック at March 18, 2013 2:52 AM