Why is it absolutely vital to vote GOP?

To make sure you get rock solid SCOTUS appointees like John Roberts, of course. And Presidents like Mitt Romney who never gave the people of Massachusetts anything like Obamacare.

My burning interest is not in Obamacare, but in the evil HHS mandate. Although it’s greatly out of step with talk radio dogmatics, the bishops’ attitude has basically been that Obamacare needs repairs, not repeal. The obvious repair necessary is the attempt to smash Catholic conscience that is the evil HHS mandate. Here’s my continued prayer that this evil mandate is indeed repealed and forever destroyed. But I’m not having hysterics about the court today. I’ll leave that to the rest of the media. I have too much to do today.

  • John Sheridan

    The HHS mandate was not up for consideration. I think it is wrong to fault John Roberts. You perhaps can fault him as a conservative, but not as a Catholic.

    • Mark Shea

      I didn’t say it was. And I’m not faulting Roberts. I’m simply chuckling over the heart attack he is giving conservatives who figured they had him pegged.

      • Tim

        It seems like Roberts actually gave conservatives a victory by marking out limits to the Commerce Clause. Though it was surprising that he was the deciding vote to uphold the ACA.

        http://www.weeklystandard.com/blogs/what-did-scotus-just-do_647932.html

        • Ted Seeber

          He also gave some evidence to those of us who favor true taxpayer funded health care over the obamanation of this collusion with the insurance industry- by turning the individual mandate into a TAX.

          • Tim

            It does make me wonder what the effect is of the highest court in the land calling something a tax. An early version of Obamacare was rejected because it included such a tax.

            This portion of the dissent (the joint dissenters, not Ginsburg) I found damning:

            “We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty… Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch ofgovernment least accountable to the citizenry.”

            (page 25).

    • Michael

      The HHS mandate was part of the regulations adopted as part of the new power the federal government granted itself over our healthcare system. If the SCOTUS had struck the insurance mandate down the rest, including the HHS mandate, would have fallen with it. Roberts will have a great deal to answer for come the judgement.

      • Tim

        I’m sure we all will have a lot to answer for at that time, but I doubt this opinion is one of those things for which Roberts must answer.

        • Michael

          Really? You don’t think he will have to answer for the effects of his decision if those effects are things like federally mandated abortion coverage for all? He could have sent Congress back to the drawing board where the worst parts could have been removed. Instead he invented a justification to not do that and the HHS mandate will stand. He bears more responsibility than just about anybody.

          • Ted Seeber

            But that isn’t one of the effects of this decision. Funding of abortion is a separate topic, and is still in the lower courts being appealed on it’s way up to SCOTUS. He may have a chance to rule on THAT by this time next year though.

            • chris-WRIT

              Good luck with that one… Sounds about as likely to turn out well as Roe being overturned in the next 150 years….

          • Tim

            His responsibilities as a Supreme Court justice are to rule on the questions before the court and no more. That’s what he did.

            I don’t care much for Obamacare, but unfortunately it was passed in Congress. Nobody challenged the procedure of passing Obamacare. It’s not the court’s job to declare a piece of legislation good or bad, but only Constitutional or unconstitutional. Unfortunately, the Constitution allows bad decisions. It even allowed slavery for some time (I wonder if the Framers will have to answer for that at judgment).

            And I suppose you could argue that he “invented” a justification to hold as he did, but if he had voted to strike down Obamacare, he would have to “invent” a different justification. In fact he did with the activity/non-activity distinction in Commerce Clause jurisprudence. But this was a novel case, and “invention” was probably inevitable.

            I’m sure it could be argued that this was a bad decision (many cases can be), but it isn’t a sinful one.

  • Bill

    Really good job as always being the voice of reason here. Personally I’m going through much worse and the SCOTUS ruling was about something else entirely than the HHS Mandate.

    The apoplexy among some is astonishing. One Catholic conservative blogger advocated secessionism on his blog. I respect passion but I cannot go that far.

    • William

      I’m two miles from Fort Sumter. I’ll keep you posted.

      • Bill

        Yes, please do!

        • http://confederatepapist.blogspot.com/ Confederate Papist

          Secession is only an option for the states that didn’t do it already. The States that seceded in 1860~1 are still in secession but are occupied by the federal government. In their case, we want our independence.

          • Adolfo

            I’m coming ’round to the notion that the United States of America is simply too large for its own good and needs to be broken up into 4 smaller nations.

          • Irenist

            With all due respect, being for the Confederacy in 1865 despite slavery seems to me like being for the Democrats now despite abortion. In both cases, the major human dignity issue of one’s lifetime was being ignored for ancillary concerns. This pro-life Yankee is having trouble grokking it, despite being unhappily well aware of the solicitude of Pius IX for Jeff Davis.

            • Adolfo

              Right about the idea, wrong about the driving issue.

              • http://confederatepapist.blogspot.com/ Confederate Papist

                Since the conflict was not about slavery (of which I am opposed) but more about sovereignty, taxation and government controls (sound familiar?), it should be something to be considered. Your comparison is apples/oranges.

                • ivan_the_mad

                  This is not true. You should read some of the states’ declarations of secession; Georgia’s, for instance, mentions little else than slavery. Or Mississippi’s has this lovely line right at the top: “Our position is thoroughly identified with the institution of slavery– the greatest material interest of the world.”

                  http://sunsite.utk.edu/civil-war/reasons.html

                  • Irenist

                    Yeah, I was gonna cite the state declarations of independence, too. Saying the Civil War wasn’t about slavery is like saying the tyrannical HHS mandate is about “women’s health.” Interpreting the Constitution as if it were the Articles of Confederation (“state sovereignty”) and taxation and the tariffs favored by Yankee manufacturers and loathed by Southern cotton exporters who imported British manufactures were all issues, but what drove Southern apoplexy upon the election of Mr. Lincoln was fear of abolition. I don’t doubt that Confederate Papist is an honorable anti-slavery conservative, I just don’t hold with the CSA myself, and think it was far less honorable than him.

                    • http://confederatepapist.blogspot.com/ Confederate Papist

                      I didn’t say slavery wasn’t an issue, I just said it wasn’t THE issue.
                      Lincoln didn’t give two hoots about slavery and considered abolitionists a boil on his arse, until he saw a political advantage. Nine States left after his election, the others joined after he started sending troops in. He supposedly freed the slaves in the Southern States (where he had no authority) with the so-called Emancipation Proclamation, but slavery wasn’t outlawed in the USA until 1866. Grant has slaves, Lee and Davis freed theirs. Lincoln wanted to send all blacks to Haiti, South America and/or back to Africa. Then he approved of the rape and burning of cities in the South. When Stonewall Jackson had Washington City in his sites, Lee stopped him because for us it was not about conquest.
                      Slavery, by the 1870′s~80′s was dying out due to the industrial revolution. Machines were slowly eliminating the institution. Look at how slavery ended in England and in most of the South American countries. Peacefully. That’s probably how it would have ended had there not been a war. Southern planters would have bought the Northern industrialists’ machines and both would have made loads of money.
                      But I digress……what were we talking about? ;-)

            • Ted Seeber

              Here’s my problem with abolition- it was replaced with sub-living wage employment. Which basically took the slaves from a condition of slavery to the slave owner, to welfare dependence.

    • Ted Seeber

      I’ve advocated for secessionism for years – but that’s because I’m a bit of an anti-federalist.

      • Irenist

        The Anti-Federalists were well ahead of their time. Would that we had heeded them about the dangers of a standing army.

  • Mike in KC, MO

    I don’t particularly like seeing massive growth in federal power and intrusion. I can understand that said growth doesn’t directly violate the teaching of the Church, but you can perhaps understand how some people would think that starting the process of handing over control to the federal government might not be the best way to help the poor?
    To some people this probably means I hate the poor and probably kick puppies and orphans too, but maybe, just maybe, trusting healthcare to the same government that has directly armed drug cartels with weapons, starts countless wars, decides it can order the death of anyone it wants and whose ‘war on poverty’ has had about the same success record as their ‘war on drugs’, is bankrupting us with its spending etc. might not be a good idea?

    • Greg Cook

      And “the free market” has been doing a great job on health care (and other things)?

      • DTMcCameron

        I would argue that it’s hardly free; that the strangulating red-tape administered by lawyer-y middle men in conjunction with cronyism, i.e., corruption, is the source of all inefficiency.

        But I’m not a dyed-in-the-wool Capitalist, so I don’t care much either way.

      • Peggy R

        Actually, it’s the lousy regulation of insurers by states that brought us to this mess. Insurance is not an unregulated “free market.” Let us not blame evil markets. If you want an economic analysis of this let me know. I spent time to study state regulatory & market failings in insurance in the run up to Ocare. I work in utilty regulation.

    • Mark Shea

      To some people this probably means I hate the poor and probably kick puppies and orphans too

      That’s my job, in addition, of course, to simultaneously advocating a theocratic police state that jails homosexuals, as well as supporting a PC lib gay agenda. So get in line.

    • Ted Seeber

      Except we’re not. INSTEAD, SCOTUS just decided to tax the American Public who decides not to buy healthcare, to pay for a basic emergency care plan administered by the insurance industry. This is the Free Market taking Over Government, not the Government Taking Over The Free Market.

      • Chris M

        Well, let’s be fair about who did what. CONGRESS decided that. SCOTUS just recognized that they had Constitutional authority (for good or ill) to do so.

  • Susan D.

    I think Roberts was very astute in calling the individual mandate a tax. What other parts of Obamacare can be considered taxes? Could the “women’s healthcare” mandate also be considered a tax, since there’s a penalty for not paying for it? And can non-profit organizations be taxed in this manner?

    • Escalonn

      I don’t think it can be considered a tax, since the Magisterium has us paying our taxes even when the government uses tax revenues for evil, but has us not obeying the mandate.

  • Phil

    It is disappointing that the Chief Justice decided to become a judicial contortionist and aburdist(finding the mandate is not a tax with regard to the anti-injunction act, but that it to a tax for constitutional purposes) to uphold this law, and that he may have given in the pressure from the left and Obama about the court’s “legacy” or whatever(something that was ruined a long time ago when the court decided that killing the unborn is a constitutional ” right”). I will wait to evaluate Robert’s personal legacy as a judge until after the marriage issues and the other hhs mandate come before the court. It is a shame that Republican presidents only seem to have about a 50% rate of picking “their” kind of judges, but we know that virtually 100% of democratic appointees will be bad. The dems certainly won’t care about “judicial restraint” when marriage comes before the court. Mitt Romney-as imperfect as he is- is the only viable candidate promising to repeal this onerous bill-including the evil hhs drug mandate. Personally, I think this decision was a pyrrhic victory for Obama since this bill will be an albatross arond his neck in the election and clearly the dems flat out lied about this supposedly not being tax.

  • victor

    I personally can’t wait until Congress decides that you have to “pay a tax” if you don’t buy a new electric car at $45,000 a pop every 5 years (for the sake of our “health”, and the “health” of the planet, of course).

    • Tim

      The dissenters (Scalia, Kennedy, Alito and Thomas that is) seemed to agree that the “mandate” would be constitutional if it were in fact a tax and not a penalty (as they described it). But because the government did not frame it that way, they said it was not a tax.

      So it’s not like the Opinion allows anything new as far as the Taxing Power goes (as far as I can tell).

    • Clifford

      Well, for some time Congress has told us we have to pay a tax (no scare quotes), for the sake of a) federal highways, b) the armed forces, c) airports (with a tiny bit for railways), and so on and so on. To say nothing of Medicare, Medicaid, subsidies for the oil industry, mega-farming and so on and so on. I’m not sure I see the difference very clearly. My ignorance, no doubt.

      • Irenist

        Yeah, the Taxing power was already pretty much plenary. This doesn’t change anything.

      • Ye Olde Statistician

        Except that they swore up and down that this was =not= a tax.
        Roberts’s opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate “is absolutely not a tax increase.” He even lectured the network’s George Stephanopoulos, who had cited the dictionary definition of tax
        In 2008, Obama promised not to raise taxes on middle-class taxpayers. An earlier version of the act that explicitly levied a tax to fund it was rejected for precisely that reason. The ruling states that the mandate is a tax hike on people who haven’t bought health insurance, and Congress does have the power to tax whatever it wants – until it is voted out of office. Roberts used the example of broccoli in his ruling: broccoli is good for you. In order to encourage eating broccoli, Congress may not pass a mandate commanding your purchase thereof, but it may levy a tax on the non-purchase.
        The real problem is that taxes have changed from a means of funding government operations to a means of coercing people into behaving right.

        Everything within the state; nothing outside the state; nothing against the state.
        - Benito Mussolini

        • Irenist

          Ah, Y.O.S., one of the most enlightening contributors hereabouts. But I disagree with you here.
          Sin taxes aren’t new: Adam Smith, in his Wealth of Nations published in 1776 supported excises on hard drinks when he said: “It has for some time been the policy of Great Britain to discourage the consumption of spirituous liquors, on account of their supposed tendency to ruin the health and corrupt the morals of the common people.” Using taxation to channel behavior is almost as old as taxation itself. Why did we have tariffs throughout the nineteenth century? To incentivize the purchase of the manufactures of New England over those of Britain. The Obamacare mandate/”tax” might be bad policy or not–can’t argue that effectively in a combox post–but it’s not some fascist horror worthy of an ominous Mussolini quote.

          • Andy

            I agree with you sin taxes have been around for many years. I also don’t know about the policy of ACA – it has some good points, form my point of view, and some terrible points. THat is like all complex actions. I think we have to sit back, take a couple of deep breaths and look inside ourselves to determine who we are going to change the country. We can’t rely on the government, because as far as I can tell it is owned by a set of businesses and business owners who are enjoying their lives and our discomfort on their cruise ships in Cayman Islands, where they aren’t taxed for a damn thing.

  • http://agapas.me Bob LeBlanc

    While I’m disappointed in a political sense, since I’m opposed to Obamacare, I’m not much excited over the decision itself. I do think that the federal government has overreached in its powers, but that merely identifies me as an old grumpy conservative. It’s clear that my vision or interpretation of the Constitution is a minority viewpoint. How could I blame John Roberts for being part of the crowd.

    Mark is correct that the real battle field is the HHS mandate. The Obama administration refuses to listen to Catholics of conscience, which is a good reason why we (Catholics of conscience) should do our best to see that the Obama administration doesn’t repeat its term. Replacing Kathleen Sebelius would be a good way to reverse the HHS mandate. Our vote should go toward the candidate we believe will listen to us.

    • Michael in ArchDen

      This might point to the worst of all worlds. The HHS contraceptive mandate becoming a matter for administrative ping-pong, like the Mexico City policy, that changes with every change of administration. That means that the stakes for those who wish to vote 3rd-party become much higher, and the grip of the ruling elite becomes that much stronger.

      • http://agapas.me Bob LeBlanc

        That’s a good point, Michael.

        For me, any political solution is a temporary patch, a short term solution. The long term solution is a cultural one, and for that, I look to the Church. We, who care about the body of Christ, and the salvation of souls, need to transform the culture by transforming individuals. That’s the long term goal that can only be successful through the Holy Spirit. Eventually, our political leaders will catch up with us.

        • Irenist

          I find reading about the early history of the Church helps buck up the spirits on that front. If the world still exists in 2000 years, people will as little remember Obama’s HHS mandate as they remember the reigns of the pagan Roman Emperor Julian the Apostate, Arian heretic King Liuvigild of Spain, or Protestant King Edward VI of England. The Church has outlasted them all, and will outlast today’s ephemeral foes, too.

        • Bewitched Bothered and Bewildered

          Perhaps that would have been possible back in the day when Catholics spoke with a united voice. However, one of the gifts of Vatican II was factionalism and sectarianism. So don’t expect to purify the culture anytime soon. Catholics themselves cannot decide what is right or wrong, moral or immoral.

          • Bewitched Bothered and Bewildered

            I was replying to Bob Leblance, not the Irenist.

          • Mark Shea

            Right. This decision was due to Vatican II. Nice to have simple explanations for everything.

            • Frank Weathers

              Should have seen that one coming. ;)

          • Adolfo

            Yeah! This is all Vatican II’s fault!

        • Michael in ArchDen

          Amen, Bob!

          Prayer, repentence and conversion (starting with our selves and our families) is the only real way to fix our culture.

        • http://disputations.blogspot.com Tom K.

          “The long term solution is a cultural one, and for that, I look to the Church. ”

          Wow, that’s a depressing thought, considering how well the Church in the U.S. is running along.

      • victor

        The HHS Mandate is the Empire occupying Endor: in the grand scheme of things, it’s just one small moon after they’ve already blown up Alderaan and occupied so many other densely populated planets. But I guess even Endor was of some strategic significance in the end. And yes, that does make us all Ewoks. Yub, yub.

        • http://confederatepapist.blogspot.com/ Confederate Papist
          • Ted Seeber

            Thank you for this link. I have signed up for their newsletter, as my father and I have been searching for exactly this sort of company to bring forth a resolution at our Knights of Columbus State Convention next year to partner with. I especially like how it is entirely patient-owned, and thus, gets around being a regulated insurance company.

  • Irenist

    A wag once said of the Iran-Iraq War: “Can’t they both lose?” That’s how I feel about Obama and Romney. Now that you know my stance on that, I’m taking a break from studying for the bar exam to offer some legal commentary.

    I hate the HHS mandate (go read Cardinal Dolan’s Kindle book for Fortnight for Freedom if you haven’t yet, btw). Nevertheless, I rather like today’s decision. Healthcare for the poor survives, which is delightful. I’d rather see it provided by subsidiarity-friendly groups like the K of C, but that hasn’t worked thus far, and this law is a lot less actually socialist than that in, e.g., Canada.

    For subsidiarity fans, there is another silver lining: Roberts has significantly cabined the seemingly plenary post-New Deal Commerce Clause and Spending Clause powers. In the future, this decision may be remembered as much for that as anything else. Commentators are already suggesting that Roberts may have pulled off some judicial jujitsu here akin to Marshall’s in “Marbury v. Madison”: There, the Jefferson Administration’s Democrats were handed the battle (Marbury lost, Secy. of State Madison won), but Marshall handed his own Federalists the war by using the decision to establish judicial review. Jefferson had won the (inconsequential case), so he couldn’t whine about the judicial review aspect without looking like a fool to the electorate. Similarly, Roberts handed Obama’s Democrats the ACA, but handed the Federalist Society a much-needed set of cords with which to tie down Leviathan in future.

    It’s a far better outcome than I had dared to hope for. Then again, I’m to the left of Obama on health care, and to the right of Clarence Thomas on the Commerce Clause, so I may be the only person in America who DID like this decision….

    • http://agapas.me Bob LeBlanc

      If you want to explain this (or link to a deeper explanation), I’d be interested.

      • Irenist

        Thanks for asking. I’d be happy to take a crack at it. Let me know what questions I haven’t been helpful with.

        The Constitution lays the basic groundwork for Congressional power over the nation in Article I. In Art. I, § 8, the Taxing and Spending clause empowers Congress to “lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” A few paragraphs down in Art. I § 8, the Commerce clause allows Congress to “regulate commerce . . . among the several states.” So Congress can (1) Tax, (2) Spend for “general Welfare” and (3) regulate interstate commerce.

        In the 1942 case of Wickard v. Filburn, a farmer named Roscoe Filburn was mad about a ridiculous New Deal regulation meant as a price support for wheat that told him how much wheat he could grow on his own farm and feed his own pigs. The Court found that the Commerce Clause let the feds tell Roscoe how to run his farm. Sure, they reasoned, Roscoe’s farm didn’t cross state lines or anything. But *in the aggregate*, if every farmer did what Roscoe was doing, the national, interstate wheat market would be affected.

        Wickard v. Filburn is the basis on which the entire post-New Deal edifice of federal Big Gummint was built. No matter what you did, some liberal lawyer would argue that your behavior had a “nexus” with interstate commerce. (In Gonzalez v. Raich, e.g., a California woman growing medical marijuana on her windowsill was told she was acting in interstate drug commerce, so the feds could come after her despite California’s medical marijuana law. Clarence Thomas, a principled state’ rights strict constructionist, voted against that. But Antonin Scalia, a good pro-lifer but otherwise just a G.O.P. hack, was so eager to stick it to some California hippie that he sided with Big Gummint in Gonzalez v. Raich to do so.)

        So that’s the background. The last piece is something called the “doctrine of Constitutional avoidance.” It means that given the choice between reading a vague statute as unconstitutional, or reading it as constitutional, a court should defer to Congress and pick the latter reading.

        What Roberts did today was apply that doctrine. He said that Obamacare was (1) vaguely written (2) unconstitutional as an exercise of the Commerce power (3) constitutional if the payment to the IRS for not having insurance is read as a tax, since the Taxing power is broader than the Commerce power.

        This is a big deal. It means that the next time somebody tries to use the Commerce Clause to expand Big Gummint (as liberals have been from 1942 until now, with only two major lost cases along the way I won’t bore you with–Lopez and Morrison), it will be a lot harder. In the war against Big Gummint, that may be more important than winning today’s battle.

        As for Chief Justice Marshall, the war he was in was to establish the right of the Supreme Court (full of Federalist appointees from the Washington and Adams administrations) to judicial review of laws to see if they violated the Constitution. Jeffersonian Democrats argued that the Court was only there as an appeals court in regular cases, not to review laws. Marshall handed Jefferson a victory in a small-time case about leftover D.C. municipal patronage jobs from the Adams Admin. that Secy. of State Madison wanted to give to Democrats instead of leaving for Adams’ last minute Federalist appointees, but used the case to establish the right of the Court to review actions like Madison’s. In other words, Jefferson got the bad news that the Court could review his Admin.’s actions for constitutionality, but the good news that in this penny-ante case, Madison’s actions were constitutional. Here, Obamacare is constitutional as a tax, but the argument of liberals like Justice Ginsburg that the government CAN use the commerce clause to make you buy broccoli, not grow wheat, not grow weed, or whatever, just got a lot more difficult.

        Howzat?

        • Irenist

          Just to clarify: Roscoe wasn’t selling the wheat. He was growing it and feeding it to his pigs. But the Court reasoned that if every pig farmer grew his own wheat instead of buying it at the feed lot, the price in the interstate wheat market would decline. Thus, stuff you did entirely within your own home was now “interstate commerce.” Or, as they used to sum up commerce clause law back in the 1970s when my father-in-law was in law school: “Short lecture today. Congress can do WHATEVER it wants. Commerce clause. Wickard v. Filburn. See you tomorrow.” So reining that in is a really big deal for those of us who care about subsidiarity.

          • Peggy R

            Yes, it is true that no man is an island, and we indeed take private actions that have public ripples (economic or cultural, etc). This idea gives license to Congress to DO ANYTHING it wants. There’s no limiting principle, as the dissenters said often at hearings.

        • http://agapas.me Bob LeBlanc

          That’s pretty good. I enjoyed it.

          However, this morning I read the following piece:
          http://www.thepublicdiscourse.com/2012/06/5772

          From it I got the idea that Stare Decisis means never having to say, “I was wrong,” unless you want to.

          Stare Decisis wasn’t a factor in Lawrence v Texas, but it looms large in abortion cases. What would stop some liberals from deciding that Chief Roberts was wrong in this decision, and conclude that the commerce clause means whatever you want it to mean?

          I would love to see the commerce clause to return to ordinary English meanings, but I’m afraid that there are lots of Humpty Dumpty type people waiting in the wings to become Supreme Court justices.

          • Irenist

            Stare decisis–Latin for “let it stand,” is, as you know, the principle of respect for old Court holdings. It’s a complicated area: with NO stare decisis, the law could change every year on every issue, and people couldn’t plan their lives or their investments; with TOTAL stare decisis, the Court could never correct a Dred Scott or a Roe v Wade.

            Planned Parenthood v. Casey, the subject of your linked article, was probably the worst application of stare decisis in living memory. There, an incredibly controversial mistake (Roe) was upheld because reversing it would be “too controversial.” Seriously, it was that bad.

            That said, Roe (and Casey), have been around a lot longer now, and a judge like Roberts might be inclined to grant them some kind of stare decisis deference. That’s part of why a pro-life replacement for Kennedy or one of the four liberal justices is so desperately needed.

            Today’s blow against the commerce clause is already being dismissed by some of the liberal lawyers in my facebook feed as “mere dicta” (i.e., non-binding chat about side-issues), so it’s far from definitive. But it’s still a good step. Still, right now, the weight of precedent (and thus stare decisis) is still with post-Wickard expansive commerce clause jurisprudence. What a prudent conservative needs to do (and what Roberts seems to be doing) is incrementally build precedent to chip away at it, not cataclysmically reverse it in one fell swoop and send the national economy (dependent as it is on Big Gummint) into chaos. Slow and steady, but hopefully winning the race.

            One of the differences between Anglo-American common law and Continental code systems is precisely this Burkean incrementalism. Given that the New Deal federal Leviathan IS the establishment, the Burkean conservative thing to do is chip away at it slowly, not burn it to the ground in one sweeping decision, like a French or Russian revolutionary. In post-Vatican II Catholic liturgical terms, hermeneutic of continuity is better than hermeneutic of rupture, as Benedict XVI often teaches. Roberts seems to be engaged here in such a Burkean project, and I find that encouraging.

    • Andy, Bad Person

      A wag once said of the Iran-Iraq War: “Can’t they both lose?”

      Funny, I said the same thing when the Steelers played the Jets in the AFC Championship a couple years back.

    • Beadgirl

      Oh, the Commerce Clause. I haven’t had to think about it since I was law school, please don’t make me think about it now.

  • Mark S (not for Shea)

    Any conservative who says, “Vote GOP so that we can appoint our Supreme Court justices who will enforce our will!” Well, that person isn’t a true conservative. Or a true liberal for that matter. That person is advocating judicial despotism.

    Go read Jefferson’s concerns about the abuse of judicial powers.

    • Irenist

      Just as background to my discussion above, Jefferson’s (thoughtful) concerns about judicial powers were precisely the ones that Marshall evaded in Marbury.

  • Kirt Higdon

    As the late Catholic libertarian Joe Sobran often pointed out, the function of the Supreme Court is to uphold the power of the central government over the states and over individuals. It is not in the least interested in checking the power of the Congress or the Executive. This decision bodes quite ill for the prospects of overturning the HHS mandate; indeed we can expect more such obnoxious mandates in the future.

  • Tim

    The Court actually did check the power of Congress in its opinion by holding that the Commerce Clause does not allow regulation of inactivity (it can’t compel you to participate in commerce).

    It’s difficult to see what, if anything, can be taken away from this opinion in regards to the HHS mandate, other than that it still exists. No First Amendment questions were before the Court. This portion of the opinion makes me doubt your cynicism:

    ““The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.”

    • Irenist

      Yeah, Roberts cites Marbury v. Madison a fair amount today. He knows what he’s up to.

  • Will

    Unless you believe some of the conspiracy rhetoric, Justice Roberts has stepped above partisanship, which is what he is paid to do.

  • http://lamentablysane.blogspot.com Beefy Levinson

    Look on the bright side conservatives: as soon as a right-wing wackjob is elected president, he can start taxing leftists for all of the things they’re not doing. “Didn’t buy any guns this year? That’s a taxin’. Not going to NASCAR? That’s a taxin’. Not listening to Rush? You better believe that’s a taxin’.”

    • Adolfo

      I appreciate the homage to the Simpsons.

      • Irenist

        I also appreciate the Simpsons reference. But the thing is, Congress could already tax just about anything. The limit there isn’t constitutional, it’s political.

        • Ted Seeber

          Well, it’s also treaty-based. For instance, under our current Free Trade Agreements, we can’t slap a 1000% sales tax on anything coming from China.

  • Chris

    My question is what this does to Roe v. Wade? Even if Roe v. Wade were considered unconstitutional (by virtue of no privacy protection in the Constitution), if SCOTUS has determined that the gov’t can tax us for not subsidizing the vehicle that provides abortions in the first place, what then? Will lawyers argue that by upholding the constitutionality of Obamacare, it also thereby upholds the constitutionality of all the services provided therein?

    Just curious what additional ramifications we’re talking about…

    • Irenist

      Doesn’t really affect Roe v. Wade, which was idiotically decided on a totally made up “penumbra” of “privacy” pretended to be in the the first 14 or so amendments to the Constitution (i.e., the Bill of Rights and the Reconstruction Amendments), which is unrelated to the Article I commerce, taxation, and spending powers from the pre-amendment parts of the Constitution at issue here. So no Roe ramifications today. (Fun law school moment for me back in first year–listening to classmates, after reading Roe v. Wade, say things like, “Geez, I’m a pro-choice feminist and everything, but wow, this argument is TERRIBLE!”)

      To the extent that the opinon indicates that Roberts is a commerce clause originalist, though, it might bode well for his vote against the anti-originalist Roe decision. But I wouldn’t hold my breath. It’s really a matter of replacing Ginsburg, Breyer, Sotomayor, Kagan, or Kennedy at this point.

      • Beadgirl

        “Fun law school moment for me back in first year–listening to classmates, after reading Roe v. Wade, say things like, ‘Geez, I’m a pro-choice feminist and everything, but wow, this argument is TERRIBLE!’”

        It’s been a long time since I read P.P. v. Casey, but I remember at the time thinking that it was an attempt to correct some of the incoherence of Roe v. Wade. Given that back then they were loathe to touch that case, I can only imagine how much more loathe they would be now, which is why I often think the prospect of actually ending abortion is so dismal. Courts hate admitting they were wrong, and this is such a high-profile issue I literally can’t imagine a make-up of the Court that could vacate Roe v. Wade.

  • http://confederatepapist.blogspot.com/ Confederate Papist

    It’s unconstutional…I don’t care what SCoTUS says. I don’t recognise the court.
    I will not comply.
    I will not pay.

    • http://confederatepapist.blogspot.com/ Confederate Papist

      “unconstutional”

      That would be “unconstitutional”…

    • Adolfo

      See ya in the cell, brother!

    • Irenist

      Nullification. Very Confederate. A question, though: Would you have to pay if you were using the Solidarity Health Share you linked to above?

      • http://confederatepapist.blogspot.com/ Confederate Papist

        Good question. Don’t know.

        I’d rather pay them than the feds.

      • Ted Seeber

        Answer- Solidarity HealthShare is loyal to the Bishops, and is not a health insurance company, but rather a 501c8 club escrow account. They don’t have to pay on any ICD code that they do not want to.

  • Zippy

    Get ready for a tax on homeschooling, and a tax on failing to provide your children with contraceptives and “sex education” from age 8. All part of the legacy of George W. Bush. I told you the Bush legacy would utterly destroy conservatism as a political force. Supporting Republicans – the Left’s b*tch in dancing the Hegelian Mambo – just makes things worse in the not-all-that-long term.

    • Irenist

      Congress could tax all those things before this decision. Love it or hate it, this decision did not radically expand the Taxing power. The reason politicians don’t tax those things is because they’d be voted out of office if they did, not because such taxation would be unconstitutional. Love the “Hegelian Mambo” image, though.

  • Irenist

    From Andrew Sullivan’s blog:
    “As president, Mitt will nominate judges in the mold of Chief Justice Roberts …” – MittRomney.com.

  • http://davidgriffey.blogspot.com/ Dave G.

    As many have pointed out, it may not be wise to see this as a clear defeat for the conservatives. Based on the decision, Obama has no choice but to call it a tax – for that is why it was allowed, the only reason. Of course he can deny it, and will no doubt assume the MSM will aid him in saying that now it isn’t a tax, but common sense might prevail. You never know.

  • Scott

    Obamacare is evil. Rest assured that any document that is 2,700 pages long, has to be first passed before we know what’s in it, is read by no one, then assigns the Secretary of HHS unprecendented power (i.e.) “The SECRETARY SHALL” is evil.

  • Lloyd Petre

    Why is it absolutely vital to be a Catholic?
    To make sure you get rock solid moral leadership from Papal appointees like this.
    http://ca.news.yahoo.com/blogs/daily-buzz/paraguay-president-former-bishop-admits-fathering-another-child-160427330.html
    One guy?
    One decision?
    Really?

    • Chris M

      Why is it absolutely vital to post silliness that’s off-topic on a blog? Trolololololooooooo

    • ivan_the_mad

      You know you’re just making yourself look extraordinarily ignorant, right? If not, well, consider this a public service announcement just for you.

  • Bill

    Oh please what a straw man.

  • Bill

    Becausd he is just doing the tu quoque argument. It’s even lazier than an ad hominem.

  • Mark S. (not for Shea)

    Health care shouldn’t be commerce anyway.

  • Paul

    WELCOME TO THE NEW 40 YEAR ISSUE TO REPLACE ABORTION!!!!

    Now that it appears the abortion plus crowd has aborted themselves out of relevance, we need a new issue to engage the electorate.

    Call me cynical, but don’t expect the republicans to solve this issue ANYTIME SOON. This is Roe Vs. Wade Part II.

    Enjoy.

    (It’s about damn time too…..I was worried that the power elite wouldn’t find the traction they need to keep us all fighting for the next few decades. I never should have doubted them. Sorry Rockey Feller.)

  • http://www.lisagraas.com/blog Lisa Graas
    • Julie

      I am so glad someone has documented that decision of Mitt’s back when he was governor. Being from Massachusetts, I remember quite well his decision regarding Catholic hospitals and the morning-after pill because it was the day I decided to never support him again, and I have been baffled as to why it has never been brought up during this campaign, or the last one.


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