Fuzzy Shorthand: The Supremes’ Decision

Okay, like everyone else I was and am intensely disappointed that the Supremes didn’t strike down the individual mandate and–due to the regressive commies’ intentional removal of the severability clause–strike down the entire 0Care travesty.

I had intended to write a long, probably rambling and riddled with curse words, post about the decision, but I’ve found that everything I have to say about it, I’ve been saying on various blog posts.  So lazy Fuzzy has decided to shorthand the post and link to a few of those posts and to copy and paste (the horror!) my comments.  Thus, through this patchwork, will you know what I think (if you care), and we can discuss the ramifications of Chief Justice Roberts’ majority opinion . . . and more importantly how we can win war.

So let’s start where I start most of my reading, commenting, and general daily reading joy: Legal Insurrection, presided over by the inimitable Professor Jacobson.

In his “Stop the self-delusion” post, he reminds us (quite rightly) that we freaking lost:

We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.

So please don’t delude yourselves.  Today was a bitter loss because it was one we should have won.

Aye, no arguments here.  Well, you know, much.  Here’s my comment there:

You’re right about the takeover of 1/6 of our economy, the incredible growth of government, and the death panels, all of it. But if, as many thought would happen, only the mandate were struck down, we’d still have all of that and still need to work our cute little butts off to hold the House, and win both the Senate and the WH in November.

Without the mandate, the hope (I guess) was the dems would just give in and redo it. What a joke, you don’t think for a minute that would have happened; we’d still have the bulk of the badness that is the ObamaCare monstrosity (including the student loan takeover, the long list of new agencies and new powers to existing agencies, the death panels, the other zillion taxes built into it, all the assorted horrors and affronts to limited government and liberty), and we’d still have to insist on full repeal.

The next post that I found compelling was over at the fabulous Just A Conservative Girl‘s place.  She wrote, in part:

Our job now is to educate the people in this country to what their choices mean.  When we go to the ballot box we are not voting for prom king/queen.  We are voting for people who will be handling very serious issues that do effect our everyday lives.  Obamacare may seem good to some on the surface.  After all they are getting all kinds of “free stuff”.  But all these free things have a cost.  These costs will be seen in higher premiums, and entire new class of the uninsured.


Chief Justice Roberts clearly states in his majority (ack!) ruling that the Court is not in place to protect the American people from themselves.  We elected those idiots, we have to deal with what they did.  It’s true.  No deus ex machina will be employed, no plot device will swoop in and exonerate the people from bad electoral decisions or from decades of voter apathy and disengagement.

My comment:

Like you, I have mixed feelings about the ruling but accept it. I’m VERY pleased that Chief Justice Roberts reigned in the Commerce Clause, and even okay with the whole “tax” thing because this will force pols to say what their “mandates” actually are, and to explain to the American people that their newest stroke of socialist genius is going to actually TAX us for NOT buying something.

It’s unclear to me, from what I’ve read, if we even have to pay the tax at all. It sounds rather like we cannot be fined, jailed, etc. for refusing to comply. But I wouldn’t push that one 🙂

Anyway, raging against the Supremes is useless. Most people agreed the most likely thing would be the mandate being struck down, and as onerous and horrible as the mandate is, it’s nowhere near as truly tyrannical as the rest of the bill. We’d be in the same place . . . we HAVE to win in November. There are no two ways about that.

And last but by no means least is the fun (and civil!) discussion over at Sentry Journal.  The ever thoughtful and thought-provoking John wrote:

Below are five reason why I think this ruling empowered the states, shackled the government, will not only bring an end to Obamacare, but will ensure Obama is a one term President.

  1. President Obama promised not to raise taxes on the American people making under $250,000.  Democratic leaders promised that the individual mandate was not a tax.  Well because of Justice Roberts and the court’s decision that’s exactly what the individual mandate is…a tax.  Congratulation President Obama, your lawyers made their case!  It’s a tax.  Not only is it a tax, it’s the largest tax in American history.  And for those who are worried this opens up a whole new way for the government to control our behavior through a “penalty” well it’s nothing new.  They’ve been doing it for years with “sin taxes” on tobacco and other undesirable products.   The only difference now, the SCOTUS has clarified that anything congress attaches as a penalty to can be viewed as a tax and it’s much more difficult to push bills through congress as a tax increase than bills that hide behind the commerce clause.  Additionally because the individual mandate has now been ruled a tax Republicans can use the budget reconciliation process to repeal the mandate with a simple majority.
  2. Judge Roberts’s argument against using the commerce clause not only brought more clarity to it, he greatly reduced the ability of congress to use this line of reasoning again to force us to engage in any activity they may be view as commerce.  His opinion reflected the following:  “People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.  That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its author­ity, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” The Feder­alist No. 48, at 309 (J. Madison). Congress already enjoys vast power to regulate much of what we do.  Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”  This line of reasoning in essence shackles congress and expands liberty.
  3. Justice Roberts, Justice Kagan, and Justice Breyer all agreed that it was unconstitutional for the government to deprive a state of all of its Medicaid funding for refusing to agree to the new expansion.  Roberts wrote the following.  “As for the Medicaid expansion, that portion of the Af­fordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer. The States are given no such choice in this case: They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding. The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction. That remedy does not require striking down other portions of the Af­fordable Care Act.”   So as you can see the states now have a choice.  This conclusion blazes the trail to limit the expansion of other federal programs imposed by the government on the states.  This was clearly a win for the states and states’ rights.
  4. Obamacare still remains a very unpopular law.  In fact those who oppose it still hover over the 50 percentile mark.  Mitt Romney raised more than $4 million within 24 hours of the Supreme Court’s decision to uphold Obamacare and we have Justice Roberts to thank for this.  While the Kool-Aid drinking liberals celebrate the Tea Party movement is charging up.  Once again average Americans are waking up and they are rallying around the battle cry to repeal Obamacare.  I personally received 10 emails from Tea Party Patriots; welcome back to the summers of 2009 and 2010.  This is the last thing President Obama and Democrats wanted to see four months out from a major election.  They wanted Obamacare to quietly fade into obscurity and be a nonfactor in 2012.  John Roberts threw a wrench into that machine and now once again it’s hanging around their necks going into November.  And you can’t tell me that Justice Roberts doesn’t read the polls.
  5. The last thing to mention is that the left is so caught up in the moment they didn’t even see this coming.  They didn’t even see how masterfully Justice Roberts played them.  And by the time they do Obama will be a one term President, Republicans will control the Senate and House, and 2016 will seem like a million years away.  Bub bye Obamacare and President Obama.

Mr. President…you’ve been punk’d and you don’t even realize it yet.

Ah, yes, such goodness!  There’s some back and forth in the comments (always such wonderful fun to bat around ideas with fellow conservative patriots!), but here’s what I wrote (for context, hop over and read the whole article and all comments):

I have to agree with your excellent assessment, John. Not only is it really not the Supremes’ job to save us from our apathy and bad choices, but it’s really put the onus on we, the people. The very thing we claim we want. Well, we got it. Let’s roll!

Oh, and I think it’s worth pointing out that from most commentary from legal observers, the only (pre-ruling) likely outcome was that the mandate was struck down while the rest of the monstrous power grab remained in place.

I’m rather shocked that so many conservatives seem to think that would be preferable (especially with the gifts Roberts gave us in his opinion). The mandate is totally unacceptable, don’t get me wrong, but there are over a dozen OTHER taxes, death panels, dozens of new government agencies, the student loan takeover, illegals covered (including abortion), the religious freedoms HHS mandate (that’s the first of many this law will spawn), and literally thousands of other liberty-stealing, power-grabbing nightmares written into 0Care. There are mandated “nutrition” courses in schools, mandatory abortion advice services in schools, really, if you can think of something that’s a regressive commie’s wet dream, it’s in that nightmare of a bill. Striking down the mandate wouldn’t have destroyed that, and anyone who thinks that the dems would suddenly want to redo health care without the mandate is truly delusional and/or hasn’t been paying the slightest bit of attention to anything that’s gone in the last 3 and half years.

NOW, at least, we have a chance to get rid of not only BO but the entire law by holding the House and taking the Senate. It must be repealed–that’s always been the only way to get rid of it (Michele Bachmann was right on that–and woe-betide any GOP, RINO, or TEA Party “republican” who defies the will of the people on that. They’ll have the shortest political careers in history as they get voted out in the next election. Honestly, I think that the GOP would die as a party if they don’t repeal immediately. A third, truly Constitutional party will rise, and I’ll be on board with it. Fast.


[quote]It’s definitely a tough call, John, but to me if your thesis is correct, this is a short term gain for a long term agony of never ending behavioral control via taxation that the American people may never be able to rectify and I differ in that it wasn’t worth it.[/quote]

I understand what you are saying, Michigan, but keep in mind that a LOT (if not all) of taxes are behavior modification through taxation, so let’s not fool ourselves. And I don’t just mean the cigarette taxes that Chief Justice Roberts cited in his ruling, either, but everything from tax credits for home ownership (the government wants you to buy a home) and over-taxing the rich (to discourage success and the American Dream, a key commie goal) to BO’s tax structure built to discourage marriage (individuals as $200.000, couples at $250,000–so two people making $200k are actually better off NOT getting married, from a taxation perspective). What better way to undermine our culture, society, and religion? So yeah, it’s “behavioral control” or ”social engineering,” but all existing laws, at rock bottom are, including tax laws. [insert: I’ve written at more length about this previously.]


Very true, Michigan. The difference here is that without the Commerce or Necessary and Proper Clauses to hide behind, regressive commies will have a much harder time selling their tyranny-by-taxation BEFORE acts pass Congress, and long before they hit the president’s desk. Again, the onus is on the people, where, arguably, it belongs.

Do we stay awake and perform the civic duty our Founders envisioned or do we slouch back on the couch while the Republic burns and tyranny takes hold? I think we agree on the answer to that one :)


In some ways, Jim, the Citizens United case is a perfect representation of what we can now expect. The lawsuits brought by the states against 0Care focused on the Medicaid funding and the mandate. Because of this narrow challenge, there are still many many things that can and will be litigated about 0Care (should it survive, which I hope to God it does not).

With Citizens United, originally upheld under one lawsuit, we saw the Supremes actually overturn their earlier ruling. This will happen with 0Care now that the Chief Justice Roberts has stripped the Commerce and Necessary and Proper clauses of their 100 years of muscle.

In short, we’d have been screwed if only the mandate had been struck down and the rest of the law upheld.  The only real win for us was the Supremes throwing out the entire law, and very few believed that possible, much less likely.

Chief Justice Roberts, through whatever wily and illogical means, has thrown the ball back into our court.  And yes, it belongs there.

Let’s roll!

13 thoughts on “Fuzzy Shorthand: The Supremes’ Decision

  1. i have to admit that i am really not seeing any upside to robert’s ruling. even people supposedly on our side are not willing to cut back on the entitlements because of “optics”.

    • I completely know what you are saying, Kerry. But think of it this way, the TEA Party did influence those big government slimeballs, we’ve reminded them of the Constitution and even got them to reverse on pork spending. No small feats. Is there more work and constant vigilance to go? Oh yes, but we’ve known that for several years now. If we stay engaged, they will do what they are supposed to do: represent the will of the people (and not what they are inclined to do: bulk up their own bank accounts, power, and prestige.). It’s up to US. No more pointing fingers and rolling our eyes in disgust when they do something tyrannical and wrong; we put them there, and if they screw up, we are the only ones who can remove them. WE are the key, the only key, and we better recognize that and work our influence. They NEED us and our votes; we do not need, and can easily replace, THEM.

  2. Hi fuzzi. I agree with Roberts and yet I disagree. While I think that the courts should be hesitant to overturn laws if there is a way not to, I disagree that this penalty is a tax. A tax is imposed on action. You earn money, you’re taxed. You buy cigarettes or gasoline, you’re taxed. This is the first tax I’ve ever heard of that imposes itself on us by virtue of our own existance. You exist, you’re taxed. A whole new class of taxes is now constitutional. Note that a tax credit is not at all the same thing. If I get a tax credit for paying interest on my mortgage, that’s not the same thing at all as saying it’s okay to impose a tax on people who don’t own a home. You have to see that?

    We can be taxed for what we don’t do. That’s huge. That terrible! We could be taxed for not having a college diploma. We could be taxed for not eating free-range chicken and organic vegetables. We could be taxed for not buying a newspaper or certain books. There’s literally nothing now that reins in the federal government from enacting any edict by threat of taxation. We will have a health club membership. We will purchase a quota of vegetables etc. Take the perfect example of political and economic protest the strike: the government can tax us for not working. You can’t go on strike because that would make your taxes shoot up. You can’t take time off to protest because then your taxes would go up. I’m glad Roberts threw out the sillyness of claiming this was interstate commerce or necessary and proper, but unfortunately he opened up a huge new Federal power. The power to tax nonactivity.

  3. IMHO, inJustice Roberts’ ‘tossing the ball’ back into Congress’ laps has pretty much assured that ObamaCare will remain the law of the land – so long as the land exists.

    Rather than killing the thing outright as being unconstitutional in total (as the dissenters wrote), inJustice Roberts threw it back to Congress, in essence saying, ‘Fix your own mistake’. In doing so, he made repealing it infinitely more difficult because the only way to repeal it now is for we, the people, to 1) take the White House, 2) take the Senate, and 3) maintain the majority in the House, then 4) convince the Republicans in Congress that it’s in their best occupational interest to drive a stake through the heart of the monster.

    At another blog, I read that Boehner had an opportunity to kill this thing back when Obama was begging for a raising of the debt ceiling – simply append repeal of Obamacare to the debt ceiling bill – Boehner didn’t, and caved in to Democrat threats. I trust that Weeping John’ll do whatever it takes to protect his own jelly-spine when it comes to this in the future.

    Also remember, people like Pelosi, Reid, Rangel, Feinstein, et. al. keep getting re-elected regardless of what they do; 52% of the people went stupid and put Obama in the White House in the first place; there’s an infestation in Congress of RINO’s whom we can’t trust; I’m sure there are RINOs hiding in Republican garb that we don’t know about (like inJustice Roberts) just waiting to strike (can you tell I trust politicians to be as lying and deceitful as possible?).

    As much as I’d love to believe we’re going to blow ObamaCare out of the water before the end of the first week of October, I haven’t got it in me to do it.

  4. Yeah, this wasn’t a fun time. However, as many people have pointed out, the possibility of SCOTUS striking down parts or the whole of ObamaCare was plan B. Plan A was always to take back the WH and Congress and then dismantle this bloated travesty. That was always Plan A. And there are various other legal avenues people are exploring. I don’t know if there’s much of a chance down, but maybe.

    The ruling did very publicly expose the Dems for what they are– and it’s not just tax and spend Party of the past. The far Left ideals of Pelosi and Obama are on full display now, and most people don’t like what they see.

    Both the far-Left Dems’ agendas and Obamacare are ultimately doomed. The question is how much damage they will cause before their collapse. Obama has essentially destabalized the world with his quixotic quest to “fundamentally change America.” These are interesting times to witness.

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  7. It is still my opinion that whether the Obamacare mandate is considered a tax or a penalty it is unconstitutional. And because of the severability issue I believe that would have put down the whole of Obamacare. There are so many constitutional rights or liberties that Obamacare tramples on. Plus the expansion of federal power has enormous tentacles. Both go against the constitution. The libs that passed Obamacare don’t give a rats A$$ about the constitution and respecting its limits. These are some reasons I believe the Supreme Court failed to do it’s job appropriately.

  8. Hey guys and gals! Sorry to be so long in responding, but after learning that Roberts changed his vote . . . well, this post is just crap. I felt that if he actually believed in his ruling, that he stood behind it on principle, it was worth reading as such.

    Having learned that he didn’t give a damn about the Constitution or even his job as Chief Justice in a co-equal branch of government that was specifically and pointedly granted immunity from elections . . . I’m just angry.

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