| CaptainHaplo |
06-30-12 12:27 AM |
Its astounding how so many people - pretty much everyone from the casual observer to the legal and political analysts have so totally missed what has occured here.
Now everyone who has read my posts for long know I am on the "right" politically. I will say this - Judge Roberts has lost an awful lot of my respect - but not for the same reason everyone else would think.
I have lost respect for him because he is attempting to manipulate the course of the country in ways that go beyond the role he has as a Justice - much less the Chief Justice - should do. This decision was political on so many levels - and was absolutely inspired and genius. But inspired genius does not mean it was proper. It also is a huge gamble.
Politically - this did what everyone thinks on the presidential race - it gives a HUGE boost to the right. The comment in the decision that basically says "American people, you elected these morons that passed this- so deal with it yourself". It has energized the right like nothing else likely could have done. But the goal is long term - which will tie into the legal one which I will make clear in a moment.
Legally - it takes a great risk by defining something that isn't a tax as one. Notice the one point that the Court did not rule on - it ruled that the penalty is a tax - but it did NOT rule that the tax is proper and legal in and of itself. This is the reason that Roberts made this decision - the Court cannot by law rule on the legality of a tax until it has been collected - which will be 2014. This is due to the Anti-Injunction Act.
That's right - if its not repealed, it can again be challenged. This time as an unlawful tax - as a tax that is imposed for a lack of commerce. See the Commerce Clause refutation in the current Opinion. There is a reason Roberts wrote the Opinion the way he did. Not one legal analyst on all the TV shows has noticed this opening. They are too busy celebrating or wringing their hands depending on their personal politics. I have spoken to a 4 attorneys and 3 law "scholars" (aka instructors at a law university) and every one of them agreed that the opening exists to challenge this tax as unlawful and that the Court could not rule on that issue until the tax has been collected.
Now - consider the impact - both long and short term - of this decision. The decision has removed any left wing claim that the court is merely a political entity - thus insuring that there will be no immediate claims of partisanship should the Court strike down the tax as unlawful in the future. The decision has significantly enhanced the republican candidate for president chances for winning by mobilizing not only the base, but many moderate and independents. Finally, one must consider the current makeup of the court. 4 Members are over 70.
At 79, the staunch liberal Ginsburg is the most likely to retire (or pass) due to age. Scalia, the "rabid" conservative is 76, but is in excellent health and is considered too driven to consider retirement soon. Kennedy and Breyer, 75 and 73 respectively, may also consider leaving the court, though it is more likley that they would be driven to it by health concerns rather than mere age. Given that they are consider either swing or left votes, the balance would be very different after such a change.
One departure would drastically modify the makeup of the court, especially considering that it is likely to be Ginsburg who leaves. It is unlikely that she will stay until she is 81 or later (remember that 2014 date - 2 years from now). The replacement will be chosen by the next president - and as such Roberts has gambled that his action will mean a more conservative justice will replace Ginsburg in the future due to a Romney win. Given that it would be be in the 2015 time frame before a case challenging the tax would make it to the Supreme Court, a Romney win will likely mean a less liberal court - and a likely 6-3 ruling that could overturn the legality of the tax itself. This would then enable the Court to write a very strong Opinion that could further limit Congress by defining what it can and can not tax - something that has not been addressed by the Court in some time.
It is however, a grave risk. If Obama wins, the tax case will be a 5-4 decision that has done nothing but create a greater mess than what we would have faced if the law was repealed this time around. At that point, removing the funding mechanism does not insure the rest of it dies.
What is more, it is an attempt to manipulate the Republic in a way that is more than just beneath the dignity of the Court.
To credit Roberts, he thought this through. He protected the reputation of the court, limited the use of the Commerce Clause, and left open the door to not only overturn the "tax" at a later time, but insured the opportunity for the Court to limit Congressional power to tax in the future. He could not have done all of this had he gone the other direction - yet in doing this he has risked much. If Obamacare is legislatively repealed, the Court has no ability to deal with the question of the tax until some other over-reach of Congress occurs. There is no telling how long that might take or what the makeup of the Court will be.
What the future holds, no one knows. But rest assured this fight is not over by a long shot.
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