Affirmed: he lied

By Jim Terry

I don't know whether to be angry with Justice Roberts, as are many conservatives, after his vote with the liberal justices on the Supreme Court declaring Obamacare to be constitutional. He would have helped himself in that matter if he hadn't again sided with the Court's liberals last week in the US v Arizona illegal immigration case. Two for two in the most publicized and important court cases in many years-cases which decide the direction of this country- is not a good record for a justice who was touted as a conservative jurist when he was nominated for his seat on the court.

After reading the majority opinion, or the majority of the opinion-the portion addressing the mandate- I have a different understanding of the outcome of the case. I don't agree with the opinion, but I have a different view than the gut reaction I felt yesterday when all the major network golden throats were declaring Obama had prevailed by a six to three vote of the Supreme Court. Of course, once again, they had it wrong as they often do. But, six to three or five to four, the Supreme Court upheld the mandate.

Here is how a court determines the validity of a law and Roberts' opinion speaks to much of this mundane procedure. When an idea becomes a law and is passed by a state legislature or the United States Congress and signed into law by the governor of a state or the president, it becomes official and is then codified, added to the statutes of the state, or in the case of federal law, codified into the United States Code-the compilation of all the laws passed by congress, which is, according to the U.S. Printing Office, now around 200,000 pages.

When a law is challenged, a court looks at several issues. First it will determine if the law is ambiguous. If the court finds ambiguity in the law, it then turns to other means to clarify the law or to determine the legislative intent of the law. Courts will look at the legislative history of a law, including reading transcripts of committee hearings or floor debate on an issue as it winds it way through the lawmaking process.

A court may try to determine how the challenged law harmonizes with other laws passed in the jurisdiction from which the challenged law arose to resolve the ambiguity.

A court will also look at case law. This is where the stickiness of legal logic thrives. This is where lawyers and judges turn to justify their position on an issue. They look for prior court rulings on similar cases. And case law drives much, if not most, of a Supreme Court opinion.

I once asked a judge on an appeals court his opinion on a legal technicality which arose in a case involving a summary judgement. Summary judgements give rise to a large body of case law because they are one of the most appealed procedures in law. His response was that almost any ruling a judge makes in a summary judgement case can be supported by case law.

In writing the 193 page opinion for the four liberal judges and himself, Roberts never addresses whether the mandate to purchase insurance under Obamacare contained any ambiguity. The opinion states:

Beginning in 2014, those who do not comply with the mandate must make a "[s]hared responsibility payment" to the Federal Government. §5000A(b)(1). That payment, which the Act describes as a "penalty"......

The clear intent of the law is that the cost of not purchasing insurance will be a penalty, not a tax. The Democratic leadership has told the America people for two years that it is a penalty, not a tax. The president, in an interview with ABC political hack, George Stephanopoulos (http://www.youtube.com/watch?v=rL7ak__MGyw) argues vehemently that the mandate's penalty is not a tax, but a penalty. The legislative intent, then, according to the people who passed the law which "we have to pass to find out what is in it,"(Speaker Nancy Pelosi), and its chief supporter, the President of the United States, is that we have been handed a penalty, not a tax.

Roberts shores up the argument that the penalty is indeed a penalty when he writes:

Congress's decision to label this exaction a "penalty"rather than a "tax" is significant because the Affordable Care Act describes many other exactions it creates as"taxes." See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).

Notwithstanding the legislative intent for the penalty to be just that, the Obama administration argued out of all sides of its face before the Supreme Court that the penalty is a penalty and legal under the Commerce Clause of the Constitution, but that if the court finds it is not constitutional to penalize people for not purchasing insurance under the Commerce Clause, then the penalty is a tax, which is constitutional under congress' taxing powers. It then argued that if it is a tax, the Anti Injunction Act would apply which bars lawsuits concerning taxes before the taxes have been collected. The legal theory being that until a tax is paid, no one had been harmed, therefore the tax must be paid and then the party believed to have been harmed by the paying of the tax can sue to recover the tax and challenge the law.

The Obama administration's multi-sided argument opened the door for Roberts to justify his position-and he did. He never determined the language in the law was ambiguous although the government's argument and the majority opinion was ambiguous. What Roberts did was to fit a round peg into a square hole.

A bit more of ambiguous legal logic follows in Robert's opinion which concludes:

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

Roberts and his liberal cohorts then abandoned the government's argument that the Commerce Clause covers the mandate to purchase insurance in this statement:

That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government's second argument: that the mandate may be upheld as within Congress's enumerated power to "lay and collect Taxes." Art. I, §8, cl. 1.

Confused? Apparently the prevailing members of the Supreme Court were confused. They acknowledged the mandate's penalty was a penalty, but that didn't fit into the commerce clause provision. So, that was unconstitutional. They then denied it was a tax for purposes of the Anti Injunction Act. But, in the end, Roberts and his friends said this:

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Early in the opinion, Roberts attempts to make a case for the Court's neutrality by stating, "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders....." who, Roberts goes on to say, "can be thrown out of office if the people disagree with them."

But the words Roberts uses to define the role of the Supreme Court continue to flash across my mind this day after the shock has worn off:

It is not our job to protect the people from the consequences of their political choices.

If conservatives can find solace in this opinion, it is this: The Supreme Court opinion upholding Obama's mandate to purchase insurance revealed the hypocrisy of Obama, his administration and the democrats who passed the Patient Protection and Affordable Care Act-Obamacare. They told Americans the penalty for not purchasing insurance was a penalty, not a tax. Yet, they argued before the Supreme Court it was a penalty, or, in the alternative, if it was not a penalty, it was a tax.

Furthermore, in finding the penalty imposed under Obamacare for failure to purchase health to be a tax, Chief Justice Roberts and his liberal cohorts, Sotomayor, J., Kagan, J., Ginsburg, J. and Breyer, J. affirm in whole, President Barack Hussein Obama is a liar.

© Jim Terry