John Yoo on John Roberts. Devastated...and Devastating
Our own John Yoo has a column in the Wall Street Journal today on Chief Justice John Robert's ObamaCare decision. Are we conservatives to take comfort in it? Does it represent, as Ricochet's Paul Rahe hopes, an act of cunning, or, as George Will argues, a "substantial victory," or, as Charles Krauthammer writes, "one of the great constitutional finesses of all time"?
In John Yoo's view, not a chance.
Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.
Why did the Chief do what he did? Here John Yoo presents the most damning single sentence about the matter that I myself have seen anywhere:
Justice Roberts...may have sacrificed the Constitution's last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.
Just this once, I wish I could spot a hole in John's argument.
But I can't. Woe and alas, but I can't.
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Jun '10
Re: John Yoo on John Roberts. Devastated...and Devastating
We shouldn't let the other four--Sotomayor, Breyer, Kagan, and Ginsburg--off the hook. If we always have to depend on one lone "conservative" to join the originalists, and save us from each new constitutional outrage, then we're already screwed. Everybody gets out of bed on the wrong side now and then. Ideally, one person shouldn't carry that burden; especially one that gets ahead best by having no paper trail 0n controversial subjects.
Edited on July 1, 2012 at 12:13amDec '10
Re: John Yoo on John Roberts. Devastated...and Devastating
If that is, in fact, true what a profile in cowardice. The hell with the future of the country. I just want a little peace and quiet. Disgusting.
Sep '10
Re: John Yoo on John Roberts. Devastated...and Devastating
I read George Will's column yesterday. He's in deep, deep denial. If this ruling is a "substantial conservative victory," I'd really hate to see a conservative defeat.
Jun '10
Re: John Yoo on John Roberts. Devastated...and Devastating
I agree with John Yoo. Yes, the language on the commerce clause is fine, but the arbitrary decision to validate the mandate under the taxing power merely substitutes one potentially open-ended means of expanding government for a different one (it may even be worse, given the conventional wisdom that the "power to tax is the power to destroy").
The idea that this sets conservatives up for future victories is bizarre. Justice Roberts just let the feds take control on 1/6th of the economy--just what future cases does he think are going to be bigger than that?
The Medicaid decision was fine, and it's significant.
But, concluding that this decision is a conservative or constitutional victory, is roughly the same as concluding that the sinking of the Titanic was a victory because some of the lifeboats floated.
It's sad when a man worries more about how future scholars will perceive him than about the Constitution. I've been an admirer of Roberts, but this is one I won't get over soon (not, of course, that he seems to care).
I said this somewhere else on Ricochet: Justice Roberts just had his Bart Stupak moment. Sad.
Edited on July 1, 2012 at 12:51amJun '10
Re: John Yoo on John Roberts. Devastated...and Devastating
The other thing to remember is, the next President will probably have the opportunity to create the next US Supreme Court in his own image; maybe for the next thirty years. Modern medicine is great (especially for US Supreme Court justices,) but not THAT great. The Autumn and Winter of life comes for us all.
Jun '10
Re: John Yoo on John Roberts. Devastated...and Devastating
Pardon me for sounding selfish, but a $750 fine(?), penalty(?), or tax increase(?) represents a 50% increase in my federal tax liability. So much for the promise that families earning less than 250K won't have their taxes increased. I wonder how many other people in the 25K to 35K salary range have figured out how badly they just got boned? If this doesn't motivate people in my tax bracket, I don't know what will.
Jul '12
Re: John Yoo on John Roberts. Devastated...and Devastating
I saw John Roberts' potential diffidence at his Senate Confirmation Hearings. He gave too much "honor" to settled rulings that, in truth, really need to be set right. It was a part of his performance -which was, of course, generally thrilling and impressive. However, I recall thinking "does he really believe what he just said" or was he just giving what he had to do , in general terms, for the likes of Leahy and Specter. I kept hoping that he had steel behind him, just wrapped in a genteel mien. But the doubts persisted, especially in light of his acknowledged tendency to not deal doctrinally when he could resolve issues on more subsidiary issues.
Richard Epstein talked of this today in the present Law Talk. How the Justices and the attorneys who practice there are "insiders" at public law and really denizens of the D.C. sphere--with the customary predilection for not rocking the boat... or how things are done.
Epstein also made the distinction between strategic thinkers and those who are ultimately litigators; with Roberts definitely in the latter category, while Scalia and Thomas are in the former.
Apr '12
Re: John Yoo on John Roberts. Devastated...and Devastating
Best description I've seen of the decision is this headline from The Rumford Meteor:http://rumfordmeteor.com/?p=6962
Supreme Court Rules 5-4 That Health Care Law Would Be Constitutional If Someone Else Wrote It
Aug '10
Re: John Yoo on John Roberts. Devastated...and Devastating
The supreme court sorely needs a dose of good old fashioned common sense which justice Roberts clearly lacks.
Jul '12
Re: John Yoo on John Roberts. Devastated...and Devastating
continuation from post above--
Grant that Roberts has the "integrity" proclaimed for him by Hugh Hewitt etc. Accordingly, his disgraceful betrayal of limited government Thursday is possible only because he does not really appreciate how crushing the Leviathan determinations are in crowding out free market choices by free Individuals. "Does not appreciate it" because Roberts is, afterall, the gifted and mentally quick son of an Indiana plant manager who deservedly won entrance to elite high school, college (Harvard), law school (Harvard again), then a clerkship for 2d Circuit Judge Friendly, then top law firms, the Reagan administration, solicitor general, his own federal appellate judicial career, then the Chief Justice. Maybe he just does not get it ..about being crushed. His only hiccup was when Patrick Leahy put a hold on his appointment to the federal bench because Leahy suspected he might be too right. Apparently, Roberts learned that he should not make those people angry again. It sounds so vulgar, but isn't it just this really? He threw the American people into the grasp of Obamacare Hell because he wants quietude and the adulation of the Right People. That is what a Disgrace truly is.
Oct '10
Re: John Yoo on John Roberts. Devastated...and Devastating
On a separate note, I listened to Thursday's podcast (the one with Lileks, Long, Robinson, Epstein, Yoo), and I just want to wholly endorse Rob and Peter's violating the Rico CoC with their use of the "chicken" word. I realize the CoC is there for a reason, but the "chicken" word was the only one in the English language to properly describe Justice Roberts.
Jun '11
Re: John Yoo on John Roberts. Devastated...and Devastating
You know, I just can't wallow in pessimism or upset about this. I can't, and I *am* a pessimist. I am so single-minded in ridding this country of the thugocracy that is the Obrezhnev administration that even the words of the esteemed John Yoo in this article make my eyes glaze over, no matter how right he is about it. I can't allow negative thoughts or any thoughts about John Roberts into my consciousness any more. I've got my #WAR face on, and it's not going anywhere until after the election. SCOTUS may have allowed it, but it's still bad policy. It isn't the first bad decision in SCOTUS history, and it unfortunately won't be the last. Elect Romney, and say yes to judicial litmus tests - the Left certainly does.
Was it over when the Germans bombed Pearl Harbor?!!
Dec '10
Re: John Yoo on John Roberts. Devastated...and Devastating
Peter, it is more in sadness than in anger that I must agree with you. As much as I respect the Chief Justice, he failed to do his job. So, let us with grim determination defeat this pack of scoundrels and finish the job that SCOTUS wouldn't finish for us.
Mar '11
Re: John Yoo on John Roberts. Devastated...and Devastating
Since the decision was handed down I've been trying to sort out what it is about Justice Roberts' opinion that bothers me most. The phrase that loops incessantly in my mind is It was so unnecessary. Whatever Roberts' goal, whatever he believed the long-term effect would be, it was unnecessary.
Edited on July 1, 2012 at 3:27amAug '10
Re: John Yoo on John Roberts. Devastated...and Devastating
I defer to no one in my contempt for Obamacare, but I don't find Yoo's argument persuasive. He brings up electric cars, as though they were something the government might now decide to "mandate" in the same way they've "mandated" purchasing health insurance. But they've been doing exactly that for years. Obama was pushing to raise the subsidy for buying a Volt to ten thousand dollars. Can we not look at that as a tax cut of ten thousand dollars for everyone who buys a car, plus a penalty of ten thousand dollars for not choosing a Volt? If we get an income tax deduction for putting solar panels on our house, can we not look at that as an across the board tax cut, plus an equivalent penalty for not buying solar panels?
I would have loved to see the mandate overturned, to watch Obama's followers wail in agony, but what's wrong with the present situation isn't that the government has now been allowed to do something it's never been able to do, but that Obamacare still sucks and we need to repeal it the old-fashioned way.
Dec '11
Re: John Yoo on John Roberts. Devastated...and Devastating
The problem is not the Court, it's us, the electorate. We've drifted into a 5-4 nation that has accepted cheap money, cheap credit, McMansions with NINJA loans, and assorted other conduct that was unimaginable 50 years ago. Roberts looked out at this 5-4 nation and gave "4" a chance in November, by making "5" own its conduct and have to defend its cost. We heard the Obama camp tuning up its post-defeat attack. Roberts didn't blink so much as pulled that club out of O's hands and say "OK, now what are you going to run on?" 2010 didn't work out so bad, so lets rumble and get it done!
Aug '10
Re: John Yoo on John Roberts. Devastated...and Devastating
I am sorry, Mr. Rodin, I do NOT blame myself for this fiasco! I blame John Roberts, solely! He can now, with grin on his face, attend all the Capitol parties and be lauded by the MSM and make a big tingle on Hardball's leg! That is what he sold our liberty for-it was surely worth it to him. It certainly was not to us!
Aug '11
Re: John Yoo on John Roberts. Devastated...and Devastating
Mel Foil: We shouldn't let the other four--Sotomayor, Breyer, Kagan, and Ginsburg--off the hook. If we always have to depend on one lone "conservative" to join the originalists, and save us from each new constitutional outrage, then we're already screwed. Everybody gets out of bed on the wrong side now and then. Ideally, one person shouldn't carry that burden; especially one that gets ahead best by having no paper trail 0n controversial subjects. · 5 hours ago
Edited 5 hours ago
This is something I find particularly appalling. There was never any doubt how the judges on the left would rule....no conversation about if one would side with the right....no one supposing that a liberal judge may decide the individual mandate isn't constitutional even if they personally side with the administration. The conservative justices seem to be the only ones to even consider the constitutionality of Obamacare, yet they are the ones accused of being "political". I suppose its easy to find things constitutional when everything thing is.......ugh
Apr '12
Re: John Yoo on John Roberts. Devastated...and Devastating
Paul de Rocco: The current tax subsidy for the Chevy Volt is not equivalent to a mandate to purchase a Volt with a tax assessed for not purchasing one. Volt subsidy: I don't purchase a Volt. I keep my present wealth. Volt mandate: I don't purchase a Volt. I pay the government $10,000. Now I can no longer afford to pay my kid's college tuition and he has to drop out. I don't like the subsidy either, and I'd argue it's unconstitutional, but the tax "penalty" is much more clearly so, and much more likely than a tax credit to compel exactly the behavior that Roberts agreed is beyond Congress' power to compel, i.e., to engage in commerce. Furthermore, the tax credit or subsidy is of no value to a person with no tax liability, who under current law cannot take the credit. But such a person might be made subject to the tax penalty, so long as his income is sufficient to require him to file a return.
May '12
Re: John Yoo on John Roberts. Devastated...and Devastating
What about his being pro-life? What about his being Catholic? Wouldn't a little regard for religious liberty contra Obamacare have saved us from the tyrannical hyper-secularism that drives the Left's madness for power? I know the justices have to consider the argument before them at the time, but honestly--he ruled against his professed beliefs and made us pay. Does that stir the conversation?