Good Question, Mr. Chief Justice!
Ilya Schapiro points out an interesting exchange from the oral argument on ObamaCare. When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well—
CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—
CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.
GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…
What caused Roberts to ultimately adopt the position put forth by the bumbling Verrilli? Speculation continues, but alas, I have no inside information on the reason for Roberts' switcheroo.
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Comments:
Dec '10
Re: Good Question, Mr. Chief Justice!
Adam,
I'm going to really really try here. Why would the Court be obligated to construe it as a tax and not as the penalty it was advertised as by President and Congress? Then once construed as a tax, why is the Court then again obligated to find it Constitutional on that basis?
Does Roberts elaborate here?
Regards,
Jim
Mar '12
Re: Good Question, Mr. Chief Justice!
This is interesting, indeed. Roberts question indicates a concern that the tax was disguised as a penalty in Congress to make it "more effective." Obviously, he must not have been very seriously concerned, only mildly so.
Sep '11
Re: Good Question, Mr. Chief Justice!
Who says you can't have it both ways? Congress threw both "a penalty" and "a tax" at Justice Roberts and - lo and behold - "a tax" stuck.
Oct '10
Re: Good Question, Mr. Chief Justice!
I think the point is the Chief Justice has made himself an unindicted co-conspirator in the Dems’ subversion of the Constitution. If it’s a tax, the Constitution stipulates it must originate in the House, which ACA did not. The Supremes have essentially sanctioned anti-Constitutional political subterfuge on a 5-4 vote. Were this an era in which political liberty and constitutional democracy was taken seriously, those five would be swinging from a lamppost by now. But we’ve been softened up by decades of being told by our intellectual betters what the limits of acceptable thought and speech are, so we’re rolling over and shrugging while we mumble about a future election. Citizens in a Republican democracy don’t “lose” their rights, like coins falling out of their pockets when they aren’t paying attention. They give their rights away out of lack of interest.
Re: Good Question, Mr. Chief Justice!
I have a one word answer: cowardice. Obama tried to bully the Supreme Court, and Roberts cut and run. It will, I suspect, not be the last time.
Re: Good Question, Mr. Chief Justice!
Paul, that sounds right, but how certain are you? Are you following the leaks, or are you basing this on Obamas public bullying?
Feb '11
Re: Good Question, Mr. Chief Justice!
Chief Roberts will show his spine later on. He won't get pushed around by the expectations of a Romney administration.
Oct '10
Re: Good Question, Mr. Chief Justice!
Israel Pickholtz
Chief Roberts will show his spine later on. He won't get pushed around by the expectations of a Romney administration.
Precisely! Conservatives do not control symposia at elite law schools, hand out honorary degrees at elite universities, write obits for the New York Times, and don't hold fashionable Georgetown parties. In short, Liberals run the club in which even so-called conservatives want a by-invitation membership.
Nov '10
Re: Good Question, Mr. Chief Justice!
The whole thing just sickens me. Yes I know that isn't a very intelligent point to make and it pretty much goes without saying. But it illustrates the difference between conservative and liberal thinking on the constitution. Government should be limited, and the checks placed on one branch by another do that. The idea that if I can find a reason to uphold the law, I must to do, is backward. I say if you can find a reason to strike it down, you must do so.