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A more studied opinion of the opinion

There are times when you need legal scholarship.  There are times when you don’t.  In the case of Judge Roberts’ opinion on ObamaCare, you don’t.  Regardless of your feelings on the wisdom of the health care bill, the decision is large hunk of logical dreck.  Problem is, it’s too big to flush.

I agree with Doug Wilson who says that muddled thinking is sinful.  God thinks clearly and would have us do so also.  To engage in garbled thought is to miss the mark.  In this case, the decision appears to have been written as intentional gobbledygook.

First, the bill famously lacks what’s called a “severability” clause.  This is a sentence often written by Congress into a law that they expect to be challenged on constitutional grounds.  It states that if any portion of the law is found unconstitutional, then the rest of the law remains intact.  The ObamaCare bill had no such stipulation in it.  Since a piece of the bill was found unconstitutional, the whole thing should have been jettisoned.  It wasn’t, which departs from what’s normally established.  The SCOTUS decision did not explain why the whole law wasn’t struck down.  That’s the first big hole in the decision.

Second, the decision flatly equivocated on whether ObamaCare is a tax.  There’s a law called the Anti-Injunction Act which says tax payers cannot challenge a tax in court unless it’s already been collected.  Since the Congress explicitly stated that the ObamaCare individual mandate is not a tax, the Court should have said that it can’t be construed as a tax if the Court was going to hear the suit at all.  To say it a different way, the Court should have said to Solicitor Verrilli, “If you’re going to argue that this is a tax, then we can’t hear the case till after it’s been collected.”  Instead, in flagrant violation of the Anti-Injunction Act, the Court accepted the case and then ruled that ObamaCare is a tax.  As I said, you don’t need to be a legal scholar to see the blatant logic failure in that.

Third, in what begs to be described as an out-and-out howler, the Court said, “Congress’s choice of language—stating that individuals ‘shall’ obtain insurance or pay a ‘penalty’—does not require reading §5000A as punishing unlawful conduct.”  So according to the Court’s finely tuned legal minds, the law says you have to do something or else pay a fine.  And if you don’t do it, and then pay the fine, it’s still not “punishing unlawful conduct” even though the law expressly says it’s a penalty.  But in case you just can’t live without legal scholarship concurring on this, here’s what the Court dissent said, “So the question is, quite simply, whether the exaction [or, penalty] here is imposed for violation of the law. It unquestionably is.”

This is the kind of reasoning I’d expect from an illiterate clod justifying his moonshine still.  It is utterly beneath the Supreme Court.

Fourth, after claiming to avoid policy discussion, the Court got into one concerning Medicaid program spending.  Although there were citations about the Spending Clause in the Constitution, and despite a federal law that authorizes the Secretary of HHS to revoke a state’s funding if the state doesn’t agree to an expansion of Medicaid, and despite the fact that ObamaCare does just that, the Court said it would be unconstitutional for a state to lose funding for rejecting a Medicaid expansion (which ObamaCare does).  And this is based on a figure of “10 percent” loss of funding which Roberts, in a flourish of rhetorical elan, referred to as “dragooning” a state’s budget.  This is nothing more than a policy decision dictated ipse dixit into the Court’s decision and given the phony veneer of a constitutional argument.  In fact, the Constitution sets no limits in the Spending Clause.  If it did, ObamaCare would have been found unconstitutional on that ground alone.

I’ve bored you with this long enough, Gentle Reader.  Suffice to say that any American with a tenth grade education could have written a more cogent decision than Roberts’.  The thing is an intellectual shipwreck.  It’s beyond my powers to divine motives; suffice to say that when intelligent people do irrational things in plain sight, something else has just got to be afoot.  I can’t wait to discover what it is.


Update July 1:  Regarding my last paragraph above, I’m not the only one who finds Judge Roberts’ decision inexplicable.  Note commenter #6 who calls himself “ruready?” on a post about it:

I am at a loss to find anything to explain Judge Roberts’ action.
Is he a coward? ( intimidated by Omama’s threats )
Is he ill? ( early onset Alzheimer’s – look at his eyes. Has he had a stroke? )
Is he mentally I’ll?
Does Obama have something on him ?
Was he paid off by Soros?
Was his family threatened by Chicago thugs ?
Is he a closet liberal? (but even a liberal activist would not have done what he did)
Something about this is very very odd – I think this is much more than an idiot’s decision. (Italics added.)

As the days go by and the conservative world tries to come to grips with this SCOTUS defeat, it’s becoming more apparent that there is no rational explanation to be found in the facts, law, and logic of the decision.   Something’s up.  We just don’t know what it is… yet.
— Bro. Steve

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