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Jewish World Review
July 3, 2012/ 13 Tamuz, 5772
Roberts' dodge at heart of ObamaCare decision
By
Byron York
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http://www.JewishWorldReview.com |
No one knew it at the time, but the key moment in the Supreme Court Obamacare case came on March 26, the first day of oral arguments, when few people were paying close attention.
Before getting to the heart of the case, the justices first wanted to deal with what seemed to be a side issue: Was the penalty imposed by the individual mandate in Obamacare a tax? If it was, the case would run afoul of a 19th-century law known as the Anti-Injunction Act, which said a tax cannot be challenged in court until someone has actually been forced to pay it. Since the Obamacare mandate wouldn't go into effect until 2014, that would mean there could be no court case until then.
No one had challenged Obamacare on that basis; the challengers wanted the case to go forward now. The White House, having argued strenuously during the Obamacare debate that the penalty wasn't a tax, wanted to go ahead as well. So the court, on its own, tapped a Washington attorney to make the argument that the penalty was a tax and therefore the case should not go ahead.
"The Anti-Injunction Act imposes a 'pay first, litigate later' rule that is central to federal tax assessment and collection," said the lawyer, Robert A. Long, on that first day of oral arguments. "The act applies to essentially every tax penalty in the Internal Revenue Code. There is no reason to think that Congress made a special exception for the penalty imposed by (Obamacare)."
After Long made his case, it fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act.
At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.
Justice Samuel Alito saw the conflict right away.
"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
"No," answered Verrilli.
At the time, some observers found the whole thing a little boring; the real action would come the next day, when the court got to the question of whether the Commerce Clause could be stretched to include the individual mandate.
But a lot of those same observers were shocked on June 28, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court's four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, who seemed prepared to uphold Obamacare under any circumstances.
Roberts' sleight of hand drove his conservative colleagues nuts. "The government and those who support its position on this point make the remarkable argument that (the mandate) is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."
After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not -- repeat, not -- a tax. But it no longer mattered. "Call it what you will," said former House Speaker Nancy Pelosi.
Outside the court, the conservatives who thought they knew Roberts seemed baffled. "For whatever reason, and you'll have to ask Justice Roberts, he rewrote the statute," said Mike Carvin, who argued against Obamacare in the case. "I'm glad he rewrote the statute rather than the Constitution, but none of it can pass rational scrutiny."
Maybe rational scrutiny isn't what is called for. If a person wants to do something badly enough, he'll come up with a reason for doing it. John Roberts, apparently, wanted to uphold Obamacare, even if it meant venturing deep into the forbidden land of the sophists.
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Previously:
06/26/12 For Obama, working for business was working for enemy
06/19/12 Obama suffers amnesia about first year as president
06/12/12 As Romney-Obama fight heats up, Bain will be back
06/05/12 Two books, two standards for Obama, Bush
05/30/12 Obama, Rubio birthers should read the law
05/22/12 Extend Obama's grace period just a wee bit longer?
05/15/12 In new biography, Obama asks: Am I an American?
05/08/12 With serious talks, Gingrich elevated GOP race
05/01/12 Romney braces for 'vast left-wing conspiracy'
04/24/12 Obama faces defeat on pipeline as Dems defect
04/17/12 Time for a cease-fire in phony 'war on women'?
04/10/12 To Obama, legal precedents are all about politics
04/03/12 All of the liberal panic unnecessary --- and all the conservative hope unfounded?
03/27/12 Obama headed for defeat in pipeline fight
03/20/12 Why do island territories play key role in GOP race?
03/14/12The real bias in 'Game Change'
03/06/12 In politics fight, Breitbart knew culture is key
02/27/12 Hollywood makes 'Game Change' into Sarah Palin story
02/22/12 Why did Santorum lose in 2006?
02/14/12 After wins, Santorum targets Romney's native state
02/07/12 Running as businessman may be Romney's curse
02/01/12 What REALLY happened to the Gingrich ethics case?
01/25/12 Romney's unsolvable Massachusetts problem
01/18/12 If Romney wins, count on Obama to dig into Bain
01/10/12 Is New Hampshire fit to pick a president?
01/04/12 How Romney began journey on abortion
12/28/11 Blame Florida for GOP's holiday craziness
12/20/11 Huckabee dismisses draft but remains a force in Iowa
12/13/11 Surging fast, Gingrich looks to take Iowa
12/06/11 Voters like Newt, but wait to see if he's real
11/29/11 Despite surge, peril for Gingrich all around
11/22/11 To bounce back, Perry must mix it up
11/15/11 Newt's wonkish, unconventional campaign
11/08/11 Tim Pawlenty, the man who coulda been a contender
11/07/11 Gingrich big winner at key Iowa event
10/31/11 Perry's right: Republicans drowning in debates
10/25/11 Romney health plan still faces challenge from GOP
10/18/11 Lesson of Perry's candidacy: Think before you run
10/06/11 In veepstakes, candidates deaf to Rubio ‘no’
10/04/11 Cain's 9-9-9 plan sounds good, but will it work?
09/27/11 Media bias 101
09/20/11 Obama plagued by Dems' ingratitude
09/13/11 Will immigration cripple Perry's bid?
09/06/11 Left paints the campaign as a religious war
08/30/11 Keep your health plan? Don't count on it
08/24/11 GOP operatives fear lasting Ron Paul problem
08/16/11 Michele Bachmann and the ‘submissive’ question
08/09/11 Obama partisans ignore facts when bashing Bush
08/02/11 When partisans fling charges of partisanship
07/26/11 Obama could be comeback kid if he heeds Clinton's lessons
07/19/11 Book casts doubt on Obama healthcare story
07/12/11 Controversial budget law begins to pay off
07/04/11 Anti-Mormon bias persists, notably among Dems
06/27/11 Huntsman tries McCain model, but he's no John McCain
06/06/11 Amid media circus, Palin lays out policy positions
05/30/11 GOP condemns Dems' ‘breathtaking’ refusal to produce budget
05/24/11 Eye-for-an-eye filibuster stops Democratic nominee
05/17/11 Amid RomneyCare fight, voters ask: Where's Mitt?
05/10/11 Bin Laden coup won't help Obama in budget fight
05/09/11 Inside the GOP debate: Pawlenty underwhelms, Cain struggles, Santorum scores
05/02/11 Huckabee decision will shape GOP presidential race
04/27/11 Get ready for game of chicken over debt ceiling
04/25/11 McCain: Libyan rebels seek U.S. recognition, might pay for war costs
04/18/11 Have the U.S. and NATO given up on Libya mess?
04/11/11 Reforming entitlements is key to a strong military
04/05/11 Jihadis Who Killed Americans Get U.S. Support in Libya
04/04/11 Unions deploy money and muscle in Battle of Wisconsin
03/30/11 Labor fight in Wisconsin is far from over
03/28/11 Obama fails to grasp the gravity of going to war
03/21/11 Union equates lavish benefits to black civil rights
03/15/11 GOP should heed lesson of 1991: No guts, no glory
03/14/11 GOP focuses on NPR's subsidies, not its politics
03/08/11 While Obama seeks new ideas, his bureaucrats stifle them
02/28/11 Why the GOP shouldn't fear a government shutdown
02/22/11 In Hawaii, a dispiriting glimpse of one-party rule
02/21/11 Obama team uses slippery words to tout budget
02/15/11 Myth and memory: The battle over Reagan's legacy
02/07/11 Invoking Reagan, Palin says ‘this is a time for choosing again’
01/31/11 With each passing year, Reagan grows larger in the American political imagination
01/24/11 House GOP begins long drive to dismantle Obamacare
01/17/11 GOP gears up again to strip NPR of federal funds
01/10/11 To House GOP, illegal immigration is a jobs issue
01/03/11 Obamacare mess is legacy of Dems' moment of power
12/27/10 Smiling Dems will soon cry ‘Washington is broken’
12/20/10 Dems are earmark junkies but GOP goes straight
12/13/10 Needed: A ‘more presidential’ Palin
12/06/10 With Dems in a funk, Obama charts a new course
11/29/10 Obama's poll numbers point to his defeat in 2012
11/22/10 Holder ignored risks of civilian terror trials
11/16/10 Dems love facts and science --- except when they don't
11/08/10 Obama, new GOP lawmakers are on collision course
11/01/10 New GOP star on track to defeat Dem legend Russ Feingold
10/26/10 If Dems lose, Obama will blame everyone but himself
10/19/10 Profligate Congress should read its own bills
10/13/10 Why Big Labor couldn't match Glenn Beck's rally
10/11/10 Trash-talking Democrat faces defeat in Florida
10/05/10 A GOP unknown in striking distance of Barney Frank
09/28/10 Administration inflates green-jobs numbers
09/20/10 In Delaware, GOP should target Dems, not O'Donnell
09/14/10 GOP Insiders Wary of Landslide Predictions
08/31/10 For Obamacare supporters, judgment day approaches
08/23/10 Obama has himself to blame for Muslim problem
08/17/10 Cut spending without cutting services? Start here
08/17/10 For Michelle Obama, extravagance dents popularity
08/09/10 Obama's zealous civil rights enforcer gets busy
08/02/10 A battle between Left and Right --- inside the GOP
07/26/10 GOP spoiling for fight over Berwick appointment
07/20/10 How long will the public tolerate Afghan war?
07/12/10 NASA's Muslim outreach: Al Jazeera told first
07/02/10 Legal complaint against Gore is detailed, credible
06/28/10 Obama and Dems heading for electoral disaster
06/21/10 Who told Obama drilling is ‘absolutely safe’?
06/14/10 Billions for ‘green jobs,’ whatever they are
06/07/10 Sestak a no-go for any job. So what was the deal?
05/31/10 As economic worries worsen, White House puts on the glitz
05/25/10 GOP dilemma: Fight Kagan, or go along?
05/11/10 Enforcing nation's immigration laws would be a bargain
05/03/10 How Obama could lose Arizona immigration battle
04/27/10 What's behind the anti-Tea Party hate narrative?
04/20/10 As government expands, beware the post-office example
04/19/10 Who wins in 2010? Good luck reading tea leaves
04/12/10 GOP Obamacare strategy: Try repeal, then cut
04/05/10 Obamacare was mainly aimed at redistributing wealth
03/30/10 Message to Dems: People still don't like Obamacare
03/23/10 The coming consequences of Obamacare
03/16/10 Marco Rubio and the Republicans who love him
03/15/10 GOP hopes town halls take health care off table
03/08/10 Dems turn risky health vote into manhood contest
03/01/10 Why Obama defies the public on health care
02/22/10 South Carolina mulls 2012: Romney? Palin? Huck?
02/16/10 GOP winning war over Miranda rights for terrorists
02/09/10 Who are the 300 terrorists held in U.S. prisons?
02/02/10 Is Obama dissatisfied with being president?
01/19/10 The Republican dilemma: Good Michael or Bad Michael?
01/12/10 Now the lawmakers are figuring out what they didn't know
01/05/10 GOP deserves blame for Democratic excesses
12/29/09 Dems' dreams of a blue West begin to turn red
12/22/09 Why Dems push health care, even if it kills them
11/30/09 Dems' kamikaze mission: Health care by New Year's
11/23/09 Why it's a mistake to bring Gitmo prisoners here
11/16/09 Dems' slick fix: $210 billion of fiscal restraint
11/10/09 Obama can't be community organizer for the world
11/02/09 At key moment, Obama leaves health post unfilled
10/26/09 ‘Fierce urgency' for jobs, not health care’
10/12/09 Facts hurt Jennings in youth sex controversy
10/05/09 Amid terror threat, Dems chip away at Patriot Act
09/27/09 In Afghanistan, let U.S. troops be warriors
09/21/09 Under fire, Democrats abandon ACORN in drove
09/14/09 Dems stifle Republican health care plans
09/08/09 For Dems, a serious Charlie Rangel problem
09/07/09 Obama's speech: Wrong setting for a sales job
09/01/09 What happened to the antiwar movement?
08/24/09 Why Dems may jam through health care plan
08/17/09 GOP thinks the unthinkable: Victory in 2010
08/10/09 The empty words of a journalist turned flack
08/03/09 Probe finds new clues in AmeriCorps IG scandal
07/27/09 Obamacare haunted by unkept promises of stimulus
07/20/09 Why the GOP failed the Sotomayor test
07/13/09 What the GOPers will ask Sotomayor
06/29/09 Serious questions remain for Mark Sanford
06/22/09 How GOPers can crack the AmeriCorps scandal
06/16/09 Worried about Sotomayor? Consider Andre Davis
06/08/09 Can Mitch Daniels save the GOP?
06/01/09 When the Dems derailed a Latino nominee
05/26/09 Why the GOP will defeat Obama on healthcare
05/19/09 Rosy report can't hide stimulus problems
05/12/09 The Reagan legacy is the man himself
05/05/09 Sen. Specter, meet your new friends
04/27/09 Ted Olson: ‘Torture' probes will never end
04/20/09 Who's Laughing at the ‘Axis of Evil’ today?
04/14/09 Congress needs Google to track stimulus money
04/06/09 Beyond AIG: A bill to let Big Government set your salary
03/30/09 On Spending and the Deficit, McCain Was Right
03/24/09 It's Obama's crisis now
03/17/09: Geithner-Obama economics: A joke that's not funny
© 2009, NEA
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