One more for now..... We already know what you are. Now we’re just haggling over price.
[Protein Wisdom blog]
Several days after the shock of the Roberts’ decision and many of the thinking Republicans are ready to move on — and in order to do so, they’re intimating that we bracket the argument that the decision itself was an illegitimate overreach by a rogue Court whose Chief Justice we now know was bullied into changing his opinion over fears that his court may appear politicized (the four lockstep votes from the liberal contingency that argued that the government has the inherent Constitutional authority, via the Commerce Clause, to regulate any human activity or inactivity, from cradle to grave, evidently doesn’t speak to the kind of “politicized” Court the Chief Justice fears), and instead concentrate on the political aspects of the decision, namely, the coming increase in costs.
My concern with such an approach — aside from the obvious: that it is possible to argue all aspects of this perversion of the Constitution coherently, memorably, and simultaneously, and therefore we need not artificially and consciously forestall branches of the argument that may resonate with an electorate that has already shown itself consistently opposed to the law and opposed to the decision – is that, by concentrating on costs exclusively, the debate begins moving away from the continued assault by a centralized ruling class on the very ideas of individual sovereignty and limited government that are at the heart of classical liberalism, and moving toward policy tweaks designed to make this massive overreach more streamlined and efficient and market friendly. That is, it moves away from classical liberalism and the foundational ideals of this country, and toward a debate over which Party has the better ideas for effectively running the administrative state.
Let me be clear: I have no problem whatever with Republicans pointing out that what is essentially a massive tax increase — with the end game being to run private insurance companies out of business and replace them with a single payer, government-run system — will be financially very painful for individual taxpayers, states, and those businesses who don’t receive waivers from the new liberal fascist ruling elite. But I would insist that the fight not be relegated to the policy weeds.
There is much more at stake here then this health care law, which is more a raging symptom of progressivism than it is the entirety of the disease itself. And, though I hate to say it, the ruling elite in DC — from both Parties — would rather haggle over who gets to run the Leviathan and how than do they have the authority to run it that way to begin with.
Roberts’ ruling — which many of us suspected was somehow compromised, a position that has obliquely at least been validated by certain reporting — was a remarkable, and simple to expose and explain, case of judicial activism. I’ve outlined rather simply how this is: the Democrat-controlled legislature, with no Republicans voting for it and no real debate, passed the Affordable Care Act, at the heart of which they built in the individual mandate. Democrats, the President, and liberal pundits argued obsessively and repeatedly that the individual mandate was NOT a tax. The law, therefore, contained a penalty, not a tax; Congress certainly knows how to pass tax legislation, and this wasn’t it — as all the Justices on the Court were aware.
It follows then that, because the law was meant to include a penalty, and it was a penalty that was voted into law, the law that Roberts and the rest of the Court was being asked to rule on was a law that contained a penalty, not a tax.
To make the remarkable assertion that a tax that was never intended was indeed the controlling feature of the law — and therefore upheld the Constitutionality of the law — Roberts had to essentially tell those who wrote and passed the law that what they meant doesn’t much matter: to someone who didn’t know that Congress had argued that it hadn’t passed a tax, the penalty provision, in the right light (and that “right light” is Roberts’ guiding position, that he must do everything to uphold legislative authority to pass even bad law) “could be read” as a tax, and therefore could function as one.
That is, Roberts re-wrote the law Congress wrote and voted on. Meaning, one way to teach people what happened here is to suggest to them that we don’t even have ObamaCare implemented. Instead, what we have is RobertsCare.
Roberts’ “reasoning” relies entirely on willful sophistry: the fact is, Roberts and every other Justice had access to legislative history, to public proclamations from the President and Democrats, and to the kinds of inter- and intratextual cues (tax legislation typically has its own set of conventions) that expressly argued against the idea that what Congress had done was pass a tax. He also has at his disposal the legal conventions for interpretation that attach to his supposed originalism: to wit, even had the Democrat Congress secretly intended to pass the measure as a tax — as a kind of trojan legislation — and their public pronouncements about what the enforcement measure was were either lies or meant ironically (in the sense of carrying the potential for the complete opposite of ostensible intent), the fact that they did nothing to signal those intentions means that, as intepreters, the Justices would have no real way of knowing that intent. And legal convention for legitimate interpretation requires that the legislation be written so as to make its legislative intent as clear as possible.
Alternately, when Congress and the President states its intent and then crafts legislation that seeks to match that intent, from the perspective of originalism, it is incumbent upon the originalist Justice to accept that legislative intent as asserted.
When a supposed originalist and strong federalist rewrites law from the bench in order to promote his own ideological preference — in this case, Roberts clearly believes that it is the right of Congress to pass bad law, and that this right supersedes SCOTUS’s right to overturn it in”close” issues of constitutionality — he is engaging in judicial activism. Roberts rewrote the law to try to teach us all a lesson on the importance of keeping separate the branches of government, deferring to the legislature on its authority to write and pass bad law, so long as it is Constitutional.
To do this, Roberts had to invent a hermeneutic route to constitutionality — and to do this, he settled on the Tax authority of the Congress.
And to reach that position, he rewrote a penalty as a tax — hubris — and simultaneously further institutionalized an incoherent notion of language whereby the intentions of a text as written are less import, for determining ultimate legal meaning, than the whims of a Justice to “see” in a text whatever it is he can make the marks that make up that text do.
A tax becomes a penalty solely because the penalty in the original text was changed to a tax by CJ John Roberts. This despite the fact that he knew no tax was intended by the Congress.
Therefore, the law is now his. This is RobertsCare. And how we get there matters.
Until we start teaching that lesson — as I’ve been arguing here for years and years and years now — we’re doomed to repeat the kinds of foundational errors that, when nestled into the rules of “legitimate” hermeneutic procedures, will always and (irony!) intentionally move us away from individual autonomy and toward tyranny.
The rest is theater.
(thanks to JHo) |
