BAYHAM: A Supreme Mistake

In a surprise, a US Supreme Court consisting of five Republican appointees and four Democratic appointees ruled that ObamaCare was legitimate by a five-four majority, with President George W. Bush’s chief justice joining his more liberal colleagues.

Many people on both sides felt that the current ideological divide favored a negative ruling on the matter but John Roberts, the very jurist that then-US Senator Obama voted against confirming, threw a curveball to one and all.

Liberals hailed the ruling that preserved the Obama Administration’s signature policy act. Establishment conservatives rushed to defend Roberts citing technical aspects of the ruling that pertain to what they claim to be the big legal picture.

And then there are grassroots conservatives and TEA Party activists who view the court’s ruling for what it is, an unmitigated constitutional disaster that has assembled the superstructure of a future American socialist state.

Count me and the four US Supreme Court justices who dissented in that last group.

Admittedly I am not a legal scholar.

I’m not even a lawyer (though I once played one in a movie and at a later date successfully represented myself in court against an attorney).

But I do know the differences between fees, taxes and fines.

A fee is something you pay for the use of a service. For example, if you want to see bison roaming around Yellowstone National Park, you’ll have to pay a fee at the frontgate.

A tax can be many things though the one primary purpose is to generate revenue. Sales taxes collect money from voluntary transactions. If I go to a store in Louisiana and buy a pack of chewing gum, I’m going to pay a mark-up in the neighborhood of 8% on that purchase. Paying sales tax is mandatory if I buy something.

And then there are taxes for “being” and success. If you own a house or make a certain amount of money, then your actions have brought you a degree of tax liability.

A fine is a fiscally punitive assessment intended to coerce individuals to follow the law, and sometimes for not taking action.

In a number of communities, if you don’t maintain your lawn, you can get hit with a fine.

If you don’t obey the speed limit, you receive a fine.

If you decide to clean out your car by tossing trash out of your window, you receive a fine.

ObamaCare’s individual mandate requires people to purchase government-approved health insurance. Failure by individuals making a certain amount of money to purchase the aforementioned results in an escalating financial penalty/assessment.

How the head of the judicial branch could sincerely confuse a fine with a tax is astounding.

If you don’t want to pay user fees, then don’t use anything. If you don’t want to pay taxes, then don’t make any money or buy property. And if you don’t want to be fined then follow the law.

But in the case of ObamaCare one is in violation of the law by 1) being alive, 2) making a certain amount of money and 3) not buying something.

The so-called silver lining celebrated by the conservative establishment was the limitation imposed on future federal exploitation of the US Constitution’s commerce clause.

And that may very well matter in future rulings in the short term, that court posture is only good under the current court composition.

Give Obama another four years and the chance to fill a few seats vacated by conservatives with liberals and the oft-abused commerce clause will rise like a phoenix from the ashes.

While one door related to the power of the federal government was closed, a bay window that would allow the federal government to simply do the same thing through another avenue was opened.

To borrow Huey P. Long’s famous High Popalorum and Low Popahirum analogy, instead of being skinned from the ankle up, the American public can be skinned from the neck down.

You’ll have to forgive the TEA Party for not blasting champagne over the totality of the ObamaCare ruling.

There’s been much speculation about why Roberts sided with the left side of the bench.

Did Roberts really believe that the individual mandate was intended to be a tax, something President Obama strenuously denied throughout the debate on his health care plan?

Or was Roberts haunted by the bitter controversy surrounding the high court’s role in indirectly deciding the 2000 presidential contest and the ghost of FDR’s court-packing scheme hatched after a conservative court frustrated his early domestic economic policies?

In his 2012 State of the Union, President Obama gave a special “shout down” to the Supreme Court about rejecting the constitutionality of his health care.

The message was clear: wipeout the centerpiece of his domestic agenda and the president would work to undermine the credibility of the judiciary.

As the head of the national judicial branch, the generally conservative Roberts “took one for the bench” and found an imaginative way to find the individual mandate constitutional by remolding what was clearly a fine/penalty and turning it into a tax.

Roberts wrote, “It’s not our job to protect from the consequences of their political choices.”

I concur with the spirit of his comment.

Voters need to go beyond a politician’s smile when casting a ballot and understand that the candidate who might put them in a state of euphoria through rhetoric could later enact policies that hurt them professionally or personally.

From a political standpoint, the court’s ruling has reset the presidential campaign.

Instead of two candidates trying to be “liked more” than the other, the focus of the election will be on specific policy and by extension what type of government we will have for at least a generation.

Is the realization of ObamaCare the point where the American electorate begins to back away from capitalism’s edge or shall the nation deliberately plunge into the valley of western European socialism?

November will be a milestone one way or the other.

That said it is in fact Chief Justice Roberts job to determine whether executive actions and/or enacted legislation brought before his court conforms to what is allowable under the constitution.

Regardless of why he provided the judiciary’s blessing to the greatest federal intrusion on American citizens, Roberts has signaled through his incorrect ruling that in order to protect the judiciary, he’ll be a doormat.

How any conservative can celebrate this capitulation is beyond comprehension.

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