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Thursday, July 26, 2012

John Roberts Bad Call

There was a very interesting occurrence in Major League Baseball recently that had the sports world abuzz. In New York, on Tuesday, June 26, the Yankees were playing the Cleveland Indians.

It was the top of the 7th inning, and with the Yankees leading 4 to 0, Cleveland third baseman Jack Hannahan hit a high foul ball just inside the bleachers down the left field line. Yankee left-fielder Dewayne Wise dove into the stands to catch the ball. Third-base umpire Mike DiMuro ran down the line, threw his hand into the air to signal Hannahan out. It was the last out of the inning and Wise hustled to the dugout.

The only problem was, the ball was never in Wise’s glove. Replay clearly showed that Wise missed the ball. Hannahan saw the replay in between innings and vigorously argued the call with DiMuro. DiMuro tossed him from the game. The umpire’s greatest mistake here is not that he failed to look at the replay but that he failed simply to ask Wise to show him the ball at the end of the play. This is all that was necessary for the correct call to be made.

It seems that John Roberts is suffering from the same affliction as DiMuro. Siding with the liberals on the U.S. Supreme Court, Chief Justice Roberts declared Obamacare constitutional. Through some nifty legal wrangling, Roberts ruled that the individual mandate was unconstitutional under the Commerce Clause but constitutional as an exercise of Congress' authority to “lay and collect taxes.” In other words, in order to allow the law to stand, Roberts rewrote it.

In rejecting the Commerce Clause rationale, the Chief Justice noted that, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” However, as Reason’s Nick Gillespie notes, while Roberts may have closed this window, he opened a door: judicial tax writing.

The four dissenting justices make specific mention of this in their devastating rebuke, declaring such action “particularly troubling.” The four declare that “[W]e cannot rewrite the statute to be what it is not…We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty…we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a ‘penalty.’”

It’s as clear as instant replay: within Obamacare, the individual mandate is not presented as a tax. As the dissenters note, “The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.” It was not sold to the American people as a tax, and liberals continue to argue that it is not a tax. In other words, when it comes to a tax, Obamacare is as empty as Dewayne Wise’s glove. And like Umpire DiMuro, Chief Justice Roberts made a horribly bad call.

The Wall Street Journal points out just how bad. “The decision is an absurd and extraordinarily dangerous interpretation of the taxing power. If Congress wants to mandate people to eat right, exercise, say their prayers at night, would it be constitutional if Congress taxes people for not complying?”

By not upholding the mandate under the Commerce Clause, George Will claims that conservatives “won a substantial victory.” Will concludes, “If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit.”

However, as the Journal alluded to, does not Roberts’ reasoning essentially give Congress “unlimited taxing power?” This is why Alito, Kennedy, Scalia, and Thomas were so “troubled.” The Constitution requires that tax bills originate in the House of Representatives, where, as the dissenters point out, “the legislative body most accountable to the people…must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.”

The biggest solace for conservatives in this is that the ruling is most likely Obama's death knell. Running against the Supreme Court was his last best hope. Now that he no longer has that option, his chances are as slim as they have ever been.

Remember the 2010 election results? The GOP swept the country (state and federal races). Independents went for the GOP by 15 points (55-40). This was a 23-point swing from 2008. The vast majority of the momentum behind the GOP surge was a direct result of the unpopularity of Obamacare. It remains very unpopular. As Joseph Curl of The Washington Times implied, Roberts just handed Romney the election.

I sure hope so.

Copyright 2012, Trevor Grant Thomas
At the Intersection of Politics, Science, Faith, and Reason.
Trevor and his wife Michelle are the authors of: Debt Free Living in a Debt Filled World
tthomas@trevorgrantthomas.com

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