Well, perhaps Robert’s Rules of Order is too cute a title for a post on one of the most significant SCOTUS rulings of my lifetime, but then part of my point is that conservatives are having a hard time coming to grips with this ruling.
There are those that feel that Roberts sold out his beliefs in exchange for his legacy (a serious breach of faith, almost unforgivable), and there are others that tend to respect the office of Chief Justice, and are looking for both the silver lining and what they missed in this ruling.
Some of my heroes, Rush and The Great One, for instance, fall heavily into the first group, viewing Robert’s decision to side with the liberals on ObamaCare as basically unconstitutional and unforgivable. However, I tend to fall more into the latter group, along with other respected thinkers, who feel that we, as voters, are responsible for the results of our votes, and that we cannot ask the Supreme Court to fix every mistake we make.
I admit, this gets tricky in this case.
Roberts’ ruling (I’m going to constantly refer to it thusly, because this much is obvious: Roberts directed this outcome) basically allowed the Obama Administration to argue both sides of this case, that ObamaCare was not a tax, and also that ObamaCare was a tax. However, in allowing that, Roberts was able to close off Federal abuse of the Commerce Clause. What is more in question, and where my faith in Roberts resides, is that in doing so, he also allowed for the possibility (and assuming the law remains in place after November) that ObamaCare could be challenged a second time all the way to the Supreme Court based on taxation as an issue.
In the background, it is important to note that since 1867 the Supreme Court has held that you cannot challenge a tax until you have actually paid that tax. In other words, the challenge to ObamaCare (had it been based on taxation) should have been thrown out by the Supreme Court for now. At least until 2014 when penalties (taxes) actually would be imposed.
The Supreme Court, on the first day of oral arguments for ObamaCare, instead allowed the Obama administration to argue it was not a tax. This was done knowing that the following day the administration would likewise argue it was a tax, in order to cover their bases – because all knowledgeable parties understood that the Commerce Clause was being stretched beyond recognition for political purposes and the likelihood of SCOTUS agreeing to such and abuse of power was actually far fetched. The technical term, humorously enough, is whether the case was ripe enough for the court.
That this was important was obvious, in hindsight, because the Court took the time to appoint Robert Long as a friend of the court specifically to argue whether the case was ripe for the court. The controversy is that all the major litigants, on both sides, wanted a decision NOW (more on this in a minute), so no one seriously argued in favor of treating the case as not ripe. Onward ho!
Frankly, on the first day of arguments,at that very moment, all of the court-watching pundits missed the significance of the court appointing Robert Long to make his arguments. The entirety of the eventual decision was already laid out at that moment. Hindsight is 20/20, and coverage at the time explained Long’s testimony:
The Anti-Injunction Act imposes a pay first, litigate later rule that is central to federal tax assessment and collection," Long argued.
He later explained that under the act, not only does the taxpayer have to wait until he pays the tax, but he has to try all the means possible to resolve it by pushing for a refund and waiting six months. If the Anti-Injunction Act doesn't apply in this case, he said it would allow taxpayers to rush to court and the "taxpayer will be able to go to court at any time without exhausting administrative remedies..."
Justice Antonin Scalia pushed back against Long: "(W)hat's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception,". To laughter, he added: "And there will be no parade of horribles because all federal courts are intelligent."
Robert Long was selected by the Roberts’ court to argue a point the court wanted to hear, but that, equally apparently, Roberts had already made up his mind on. As a result, Long argued that the Anti-Injunction Act should apply (in agreement with the Fourth Circuit Court of Appeals). However, the court agreed to look at the case anyway. Hence, this mess.
Is it possible that Roberts knew what the eventual outcome would be when he scheduled Robert Long to testify? Well, duh (my opinion).
There are those on both sides of this debate trying to position Roberts as either brilliant or a stupid sell-out to the constitution.
My take on this is that he knew exactly where this was going before the arguments had even started. Why wouldn’t he? That is what we pay him for. God help me, I have to deal with relatively smart people all the time that still fail to understand there are other competent people out there. Roberts’ job was to anticipate all of this. Duh. Now, figure out if you think that makes him smart or stupid. A great analysis of this can be found at Reason:
“The text of a statute can sometimes have more than one possible meaning,” Roberts wrote, before proceeding to embrace the only possible meaning that would allow the statute to survive. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” he continued.“Granting the Act the full measure of deference owed to federal statutes, it can be so read.”
And so judicial restraint reared its head. In fact, as an authority for his deferential maneuvering, Roberts turned to none other than Justice Holmes, citing the famous jurist’s concurring opinion in the 1928 case of Blodgett v. Holden, which declared, “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”
In other words, the tie goes to the government.
Mark Levin, the Great One, is fit to be tied over Robert’s ruling. In one of the few times I disagree with a man far more educated, intelligent, and experienced than I, I have chosen to disagree. In my opinion, Levin is too focused on the battle, this decision, and his desire that the Supreme Court ends the war though this battle, than he is focused on the reality: that liberalism/socialism is a disease that will not go away just because of one Supreme Court decision. Even if we had won this battle, there is still a War on.
I know he is influencing Rush on this issue, but I remain of a different opinion.
I am not trying to make a glass is half-full analogy, I merely observe that liberals are intent on polluting the glass, so half-full or half-empty really does not matter. I think Roberts is in this for the the long War, and he chose his battle carefully. He knows that the left is not satisfied until the federal government had enough power to ignore the constitution. Further, that they remain in control of such a government. War.
So, I lay my hopes on Plan B and Plan C.
Basically, this is a war, and the good guys have to win.