Someone Give Roberts A Primer On Umpires. STAT.
I agree with Nick Gillespie at Reason that there's no credible way to spin the Obamatax decision as a "win" for limited government. Sure, the smackdown of an expansive reading of the Commerce Clause was great but, as Nick puts it:
Yeah, well, when Chief Justice Roberts closed a window, he opened a door.
That open door enables Congress to just compel whatever it wants so long as it's called a tax. And hey, if it's not called a tax, under the Roberts court, judicial restraint means rewriting legislation.
Jonah Goldberg asks why no one seems concerned that Roberts ruling did so much of what wasn't asked of the court (poisoned the well of the Commerce Clause for liberals, removed the court from being an election-year issue, gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively, saved the legitimacy of the court, etc.) and so little of what was asked of the court (determining whether the law, as written, was constitutional).
So while you read Krauthammer and Will's comments favorable to Roberts, be sure to also read Rich Lowry's critique of Roberts' decision. He reminds us that Roberts said he envisioned his role on the court as an umpire:
In his Obamacare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law (as an activist, a partisan, and an altogether rotten human being), Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over. The ref called a foul, but didn’t interrupt the play.
As a result, there’s Obamacare as passed by Congress. Then there’s Obamacare as passed by the Supreme Court.
Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.
In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.
It is not an umpire's job to redraft laws under the guise of judicial restraint. Or as Ramesh Ponnuru ends his critique:
The resulting law may be a better one than Congress wrote. It is not, however, the law that Congress wrote. Roberts may think he has threaded a needle. He has avoided affirming an expansive reading of the Commerce Clause, which conservatives loathe, while refusing to give liberals the ammunition to call him a partisan for dismantling their cherished law. He acted cleverly. He also acted less like a judge than like a politician, and a slippery one.
And the Wall Street Journal's take:
Nancy Pelosi famously said we need to pass ObamaCare to find out what's in it. It turns out we also needed John Roberts to write his appendix.
If this is what a Roberts court means, we're in bigger trouble than we may think.
Photo of umpire via Shutterstock.
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May '12
Re: Someone Give Roberts A Primer On Umpires. STAT.
I've recently started to muse whether Roberts swapped votes with Kennedy in order to be a leader and take one for the team. This decision and opinion seem more Kennedyesque than what we were told to expect from Roberts. I'm wondering if Kennedy announced his vote and reasoning and Roberts, knowing it would not sit well with conservatives, decided to add the weight of the chief justice's authority and his reputation as a solid conservative to the decision by telling Kennedy to take the vote that Roberts would have taken.
Jun '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
This is worse than the old kind of judicial activism. Rewriting laws is two bridges too far.
Jun '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
Whatever was in Roberts' mind, the lesson for individual citizens is: vote carelessly, and reap the sorrow. The only backstop left is the informed resolute voter.
Jun '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
There is one silver lining to all this. Tax bills are the only type of legislation that cannot be held up by filibuster in the Senate. When repeal time comes, we'll only need a majority vote in the Senate.
Apr '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
Unfortunately, an increasingly endangered species, and nowhere near coming under the 'protection' of a government of the parties, by the parties and for the parties. (soon to be Party)
Nov '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
If I tell you that you can't have slaves, but I tell that you can beat someone for not picking the cotton in your field, what have I told you? I've told you that you can have slaves. Judge Roberts is either really dumb, or he thinks we are...
Jul '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
Meet the new boss, same as the old boss.
Oct '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
Why would Kennedy switch his vote? Seems like an implausibility to me.
Jul '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
Albert Arthur: Why would Kennedy switch his vote? Seems like an implausibility to me. · 1 minute ago
Not just switch his vote but read the dissent. No, it's clear Kennedy thought the law should have been thrown out. Roberts will have to own up to this mess of his own making.
Edit: an indication of this being Roberts' own doing here.
Edited on June 29, 2012 at 6:17pmOct '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
Mollie Hemingway, Ed.
I agree with Nick Gillespie at Reasonthat there's no credible way to spin the Obamatax decision as a "win" for limited government. Sure, the smackdown of an expansive reading of the Commerce Clause was great but... · · 47 minutes ago
I agree. What's more galling is that if Roberts's intent was actually to limit the Commerce Clause, he could have limited it by joining with Kennedy, Alito, Thomas, and Scalia to strike down the entire law. Surely that would have been a much more effective way to limit the scope of the Commerce Clause. No, limiting the Commerce Clause was not Roberts's intent.
The umpire in the picture kind of looks like Andrew Breitbart.
Oct '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
Whiskey Sam
Not just switch his vote but read the dissent. No, it's clear Kennedy thought the law should have been thrown out. Roberts will have to own up to this mess of his own making. · 0 minutes ago
With Kennedy clearly being all for throwing out the entire law it just makes Roberts's ruling all the more disappointing.
Nov '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
With respect to owning up, will he? I mean, I would guess that half of America don't know who he is and aren't talking about this at all. What possible ramifications are there for him? Alito won't invite him over for the annual bocce tournament this year?
Jun '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
I think we may have a glimmer of hope. Roberts' reasoning was so bad that it may leave him an out on a similar case.
What he basically said was:
1) If the payment is low enough that individuals have the option to comply with the government’s wishes or not, (2) if there is no scienter requirement, as penalty for unlawful actsoftentimes have, and (3) if the payment is collected solely by the IRS through the normal means of taxation, then it is a tax.
But the completely and arbitrary nature of #1 leaves him an out, next time he can simply find the tax to be too coercive for people, and this a penalty, and thus unconstitutional. I sure hope that was his motive.
Jan '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
Are you all getting tired of your debating-society conservatism yet? Ready to start fighting?
I recommend having a member in the hoped-for Republican-majority House, a real red meat patriot like Allen West, introduce articles of impeachment against Chief Justice Roberts next January.
The offense? Think of something.
If a man commits an offense against you, pay him back in kind. It teaches him a lesson.
Or, of course, you can always just bitch.
Mar '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
C'mon, lighten up. Everyone said Dred Scott would be the end of the country, and that worked out OK, right? Oh, never mind.
Re: Someone Give Roberts A Primer On Umpires. STAT.
Agreed on all counts. But on the other hand, and I know I'm just making lemonade out of lemons here, maybe we've all been too reliant on nine unelected judges to make the tough decisions about -- let's face it -- the size and scope of government. There's nothing in the Constitution that prohibits socialized medicine. The only thing that keeps us from that is us. And we voted, 53% of us, for the current president of the United States.
Apr '12
Re: Someone Give Roberts A Primer On Umpires. STAT.
A more apropos baseball analogy would be a manager calling out to his players to intentionally walk the batter, the catcher giving the sign for the pitcher to throw a ball outside the strikezone. The pitcher then throws a ball that happens to fall within the strikezone (either intentionally or unintentionally). What's a umpire to do? Baseball fans know the answer.
Jan '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
"The only thing that keeps us from that (socialized medicine) is us."
And now you know, Rob, why having "comprehensive" immigration reform and stifling anything short of amnesty for illegal immigrants is so crucial to the Democrats, so crucial that the opponents of same get slandered as "xenophobic."
The Democrats are intent on changing who "us" is.
Jan '11
Re: Someone Give Roberts A Primer On Umpires. STAT.
And don't be concerned about future doctor shortages. In place of MDs there will be nurse general practitioners, certified mid-wives, and thousands upon thousands of new doctors, all of whose first language is NOT English. After all, America needs their skills.
As a side benefit, they'll all be good Democrats, working in the fabulous public sector.
Edited on June 29, 2012 at 7:49pmJul '10
Re: Someone Give Roberts A Primer On Umpires. STAT.
If you fall on the more Jeffersonian side of the spectrum, though, you would think the fact the Constitution doesn't grant the federal government the power to introduce socialized medicine is what prohibits the federal government from doing so. We've turned the entire purpose of the Constitution on its head from a document only granting specific powers to a document only limiting specific powers. Yesterday's ruling moved us that much further from getting back to basics.