If you haven't taken time to read NFIB v. Sebelius, ridiculously upholding ObamaTax (yes, I stole that name from Ace and others, but it is appropriate) as Constitutional, do so after reading this post. There are a bunch of things to unravel with it, and I will do what I can to present as complete an analysis as I can. I'm going to avoid discussing the recent reports regarding Chief Justice Roberts changing his mind and whether or not he wrote part of what is now the major dissenting opinion.
First off, the majority opinion, Roberts' opinion, is as bad as advertised. Second, Ginsburg's opinion graphically displays how the liberals/progressives on the Supreme Court have no interest in upholding the actual United States Constitution. And lastly, the two dissenting opinions show an understanding of the Constitution that Roberts seems to have forgotten.
Let's break it down. The Court went 5-4 to say ObamaTax is a violation of the Commerce Clause. Let's stop there for a moment; that is where this should have ended. As I and others have argued repeatedly, Congress cannot redefine the word "commerce" to include not doing anything, which is what the Democrats attempted to do in ObamaTax. The Democrats went through hoops in their justifications for saying inactivity was commerce, just as Democrats went through hoops, with all kinds of chicanery and bribes, to get ObamaTax passed.
The Court also went 5-4 to say ObamaTax was Constitutional under the Taxation (or Spending) Clause. Not only did Roberts create a weak precedent, the opinion from the Court's liberals/progressives highlighted the great hypocrisy of the left.
Justices Breyer and Kagan joined Chief Justice Roberts and the dissenters in regards to the Medicaid Expansion, which threw out the penalty if states don't increase the number citizens on Medicaid. It also highlighted how extremely radical Justices Ginsburg and Sotomayor are in that they believe the 10th Amendment doesn't exist.
The United States Constitution defines three branches of the federal government: the Legislative Branch, which includes two bodies, the House of Representatives and the Senate, the Executive Branch, and the Judicial Branch, the federal courts. Of those bodies, Article I, Section 7 of the Constitution clearly states that revenue bills (which is what ObamaTax is) must originate in the House, which occurred in this case; yes, the Senate made many modifications, but the ObamaTax bill did originate in the House, which is all that matters legally.
But as has been shown, Democrats did not call ObamaTax a tax; it was a penalty. Obama himself went on TV and publicly suckered the American people, and those Democrats he duped into voting for it, that the mandate was not raising anyone's taxes, especially those who make less than $200,000 a year ($250,000 for those married, filing jointly). As soon as Obama sent his minions in court to defend his travesty, he tried to say the penalty was actually a tax, but only because he didn't want the mandate to be decided on the merits and to have the various lawsuits thrown out based on the 1867 Anti-Injunction Act (tax bills must take effect before suits can be filed). The Democrat media made it a point to ignore these points, in order to avoid the fact that Obama and the Democrats were liars, but were forced to acknowledge this during the oral arguments as Justice after Justice ripped into the tax-related arguments brought forth by Solicitor General Donald Verrilli. In short, Obama was trying to have the Executive Branch write a tax bill, something the Constitution does not allow. (Even now, the Democrat media are happy to preserve the Democrat lie that the ObamaTax mandate is not a tax.)
But it got worse. Thanks to the Chief Justice, the Judicial Branch decided to go even further. Even though Obama only wanted the mandate to be a tax for purposes of avoiding having the Court decide the mandate's merits, Roberts usurped the Article I, Section 7 powers of the House. His arguments are extremely weak; I suspect this decision will eventually go the way of Plessy, and in a lot shorter time. Along with Dred Scott, Plessy, Wickard, Korematsu, Roe v. Wade, and Kelo, Roberts' opinion will go down as one of the worst cases of unconstitutional judicial activism. Roberts (as well as the Obama regime) completely ignored the intent of Congress to call the mandate a penalty and not a tax; Roberts and the majority as part of the Judicial Branch wrote a revenue bill that did not originate in the House and that Congress never passed. The twists and turns of logic, the contortions, are an egregious example of wordsmithing in order to come to a desired result, a result that in no way passes Constitutional muster by any stretch of the imagination. And make no mistake about it, the Judicial Branch ultimately wrote a revenue bill, just as the majority in Kelo were accessories to theft.
As bad as the opinion is, what makes it more awful is that the federal government has free rein to lie to the American people about what is ultimately a federal tax increase. They can call a tax increase anything they want, say it's something else, and this new precedent gives it the green light. Case in point: Obama and the Democrats continue to lie about the ObamaTax mandate being a penalty and not a tax, aided and abetted by the Democrat media.
As much as I like the fact that Roberts rightly rejected the Commerce Clause arguments, in the end we still have ObamaTax in place.
Now let's get to Justice Ginsburg's opinion, concurring in part, concurring in judgment, and dissenting in part, which was joined in total by Justice Sotomayor, and for the most part by Justices Breyer and Kagan (they agreed with Roberts and the four dissenters regarding the Medicaid expansion). The words Ginsburg used are dripping with venom throughout. She hated having to agree with Roberts on allowing the mandate to stand under the Taxation Clause, absolutely hated it, chastising him vehemently for having done so. Ginsburg and the rest of the liberal/progressive radicals used every Democrat talking point, including the redefinition of the word "commerce", to claim the Commerce Clause allowed for the mandate to be Constitutional. She and the others have no problem relegating the American people to serfdom to serve the so-called "greater good" of the federal government under Democrat rule, the party that started the Civil War to maintain slavery and gave us the "Jim Crow" laws. Ginsburg cited Wickard and Gonzales repeatedly, ignoring the major dissent's valid arguments that neither of those applied.
But even as Roberts exposed Obama and the Democrats as liars, Ginsburg and the rest of her ilk on the Court are shown to be complete hypocrites. They really, really wanted ObamaTax to be a Commerce Clause case. But when they saw that wasn't going to happen, they were happy (kind of) to follow Roberts over his part of the cliff of judicial activism; Ginsburg, Breyer, Sotomayor, and Kagan had no compunction about ignoring the Constitution in order to deem ObamaTax "legal". That is what makes them radicals in the worst way, tyrants in black robes.
I want to cover Justice Thomas' brief dissent. In very few words, the man embodies what America is about. His last two sentences are brilliant [emphasis from original]:
As I have explained, the Court’s continued use of that test [ed. note: the "substantial effects" test; it came into being in NLRB v. Jones & Laughlin Steel Corp in 1937, along with other cases like Wickard] “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.Democrats frequently talk about the "national economy", how "the rich" own most of "the nation's wealth", and other such things. These are phrases that only rate any merit with statistics, not policy. There is no "the nation's wealth"; wealth is produced by individuals, which is how the Constitution sees it. That is why the Bill of Rights enumerates individual rights, not the "rights" of the collective. Each of us has been given an ability, a talent, to apply ourselves, and to do so honestly, ethically, and legally, which in turn improves the nation; the Constitution, especially the Bill of Rights, is designed to protect those things. But it isn't how Democrats see it (except with their own wealthy donors), especially radicals like Obama and those on the Court who joined Roberts. Thomas' words above are a stinging rebuke to those who wish to rule a "collective" instead of governing a nation of free individuals.
As far as the dissenting opinion joined by Justices Scalia, Kennedy, Thomas, and Alito, it is what should have been the majority opinion, although it doesn't go as far as Thomas' dissent. (As far as I'm concerned, Wickard should have been overturned, just as Plessy was by Brown.) The fact that Kennedy, who has written some atrocious majority and concurring opinions in the past 10 years (Lawrence, Hamdan, and especially Roper v. Simmons and Kelo), wanted all of ObamaTax thrown out says volumes. This statement from the joint dissent says it all [emphasis mine]:
The Court today decides to save a statute Congress did not write.As I had mentioned above, we are now stuck with ObamaTax. The only way that will happen is to elect Mitt Romney as President and to add four Republicans to the Senate (no matter how lefty "pundits" try to spin it, Republicans aren't going to lose the House). Wittingly or not, the Chief Justice provided Republicans with a glorious opportunity to tell the American people that Democrats, especially Obama, played them for fools with their lies about health care "reform" that isn't reform, and that ObamaTax is just that, a tax increase on all Americans. It's a no-brainer. And while it doesn't have to be done at once, Republicans need to start coming up with real health care reform that not only increases the chances of having more American people afford it, but also reduces its costs. But exposing Obama and the Democrats as liars is the first thing on the list; after all, it's what the Supreme Court said.
Cross-posted at RedState.