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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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The ACA passes muster (pass the mustard!)

Uploaded: Jul 5, 2012
July 4th week is great timing for a shout-out to a leader who may have put country before partisanship. Chief Justice John Roberts cast the deciding vote in the Supreme Court's validation of ObRomneyCare, passed before the GOP perfected its siege techniques. In so doing, he may have secured the financial and health futures of American millions -- or sped the Apocalypse, depending on where you get your news. So guarded are the processes of the Court and the thoughts of the Justices that we may never know his true motivations -- they might have been any or all of several possibilities.

The Chief Justice position is a "first among equals" title. Its vote counts exactly the same as the other Justices in Court proceedings -- both as to which cases they choose to decide, and as to the decisions themselves. Mr. Roberts' predecessor, Chief Justice Rehnquist, sought to dress up the title with some ceremonial sergeant's stripes on his judicial robe (perhaps his bathrobe, too?), but that has proved to be a short-lived tradition. CJs do tend to define the Courts they serve in the eyes of history, like the Warren Court named after California's former governor, an Eisenhower appointee.

Perhaps that latter distinction gives the Chiefs a particular perspective when it comes to considering the legacies of their Courts, and their personal places in history. Chief Justice Marshall firmly established the principle of judicial review that the Court is the ultimate arbiter of the Constitution's application to act of legislatures, although by so doing his Party lost the early case of Marbury v. Madison. By losing that battle, he won the Court's war to establish itself as a co-equal branch of government. CJ Hughes was one of two Justices whose switch in timeŁ to joining the liberals in upholding New Deal-style legislation, ťsaved The Nine -member Court from FDR's infamous court-packing plan. CJ Warren, too, seems to have recognized the urgent needs of the country in affirming landmark civil rights legislation in the 1960s, morphing from a relatively conservative prosecutor and Governor to a judge so liberal that Ike called his appointment "the biggest dam-fool mistake I ever made."

Generally CJ Roberts is among the four reliable conservatives on the Court. His political credentials are mostly consistent: he clerked for CJ Rehnquist, served in both the Reagan and Bush 1 administrations and was appointed to the Court by Mr. Bush, the younger. Thus, his opinion in the case of ObRomneyCare came as a shock to most, and has been seen as a betrayal by some partisans. A pretty good argument can be made, however, that he was led to that position by his concern for the Court's place in the eyes of the nation. The Supremes do read the newspapers, as the saying goes.

Recently, the Supreme Court has been seen increasingly as just another partisan branch of government, rather than as the impartial Deciders whose loyalty is to the Constitution. Starting with Bush v. Gore and certainly including the wretched Citizens United debacle, the Court's decisions have appeared to many commentators to be evidence that the Justices merely dance with them that brung 'em; the Court splits 5-4 in either direction depending on the current tune called by swingman Justice Kennedy.

In the ObRomneyCare case (okay, Affordable Care Act), Roberts broke with the conservatives and voted to uphold the federal government's right to legislate in the manner it did (back in '09, when it was still in the business of legislating). Thus, he answered those critics, arguably by going where the Constitution led him, instead of imposing a right-of-center reading on it. The fact that he used the feds' taxing power as a basis also allowed him to maintain his conservative credentials by continuing their preference for limiting federal power to act under the authority of the Commerce Clause (for my money, imposing that limit on a health care sector that comprises nearly 20 percent of the economy is absurd, but they framed the issue differently).

Now, it may be that Mr. Roberts believes that ObRomneyCare is bad policy and will fail under its own massive weight, or perhaps he calculated that it is so unpopular that it will contribute to Mr. Romney's election and thus its repeal on the biblically busy First Day of a GOP administration, if so, he was cagey in doing "well" for his side by doing "good" for the Court's reputation -- a bit like CJ Marshall, way back in 1802. Or he may have actually believed that the taxing power is a sufficient basis for upholding the ACA. Some right-side pundits have expressed alarm in the short run (perhaps some of their concern also arises out of long-serving conservative Justice Scalia's increasingly erratic behavior on the bench, his departure could alter the Court's philosophical balance), but this one will be played-out over a longer period, and CJ Roberts'opinion may have been good for both Court and country.

So, happy judicial Independence Day, Mr. Roberts!

Comments

Posted by Rick Pshaw, a resident of Danville,
on Jul 5, 2012 at 11:27 pm

Dear T-Cush,

The implications of the SCOTUS decision are not all in. Don't be surprised (or abjectly disappointed) at anything...


Posted by Atticus Finch, a resident of San Ramon,
on Jul 6, 2012 at 7:54 pm

One thing you forgot to add Mr. Cushing is that even though Chief Justice Roberts voted "left" of the the conservative block, the justices who voted with Roberts were very upset as to how he arrived at his opinion. Ginsberg wanted Obamacare to fall under the Commerce Clause. Personally, I think Roberts got it right; and I'm conservative.


Posted by Tom Cushing, a resident of Alamo,
on Jul 7, 2012 at 8:17 am

There's an OpEd in some paper back east that discusses the longer-term implications of the conservative Justices' take on the limitations of the Commerce Clause. Web Link

It feeds into the general stream of opinion that this election is a very stark choice between two widely different visions of what America is, and stands-for. It's no secret which version I personally favor -- but the guy who better articulates his vision to the Great Middle that pays attention to this stuff intermittently is probably the one who'll win. Mr. Obama hasn't yet been willing to really mix-it-up -- perhaps he's keeping his relatively limited powder dry?


Posted by C. R. Mudgeon, a resident of Danville,
on Jul 9, 2012 at 1:58 pm

When is a tax not a tax? When it's a penalty, er, a "tax penalty". No, wait, it's a tax after all...


Posted by spcwt, a resident of Danville,
on Jul 16, 2012 at 10:10 am

The last time I felt this way, they told me O.J. wasn't guilty. But after studying it carefully, I can find no flaws in Robert's opinion. As far as I can tell, it is sound jurisprudence.

Republicans should love the Roberts opinion, as it preserves Obamacare, a fantastic wedge issue that will galvanize anti-government fanatics for years. Republicans will never overturn it, of course. Why would they? It is a huge political gift. Like any govt. program, Obamacare will suffer from abuse, waste, fraud, etc. Every time an abuse arises in the press, it will be fed like red meat to the conservative base, allowing Republicans to return to office and also spend with abandon, as Republicans have done time and again.

Obamacare's insurance subsidies will cost $1.762 trillion over 10 years and grow by 8% a year, a conservative estimate that assumes costs don't explode—which they will.

Hyper-partisans, like Tom, focus on Obamacare's "benefits," ignoring questions on how to pay for it as well pay for Social Security and Medicare, currently underfunded by $50 to $70 trillion.

America currently borrows over $1 trillion per year to pay for goodies it cannot afford and is projected to do so for decades. We all know this is unsustainable and a financial day of reckoning awaits.

The story Tom peddles about how America can have "the rich" pay for all our welfare goodies is pure fantasy.

Neither party has the political will to tell the public they must cut spending and that everyone, including the middle class, must pay more taxes in order to balance our books.

Seeing Obamacare upheld is like watching a family pile on more debt than they can possibly afford.


Posted by Tom Cushing, a resident of Alamo,
on Jul 17, 2012 at 11:01 am

Hey sp: opinions, as they say, are like many body parts – everybody has one: you, me and CJ Roberts. The idea that you can find no flaw in Mr. Roberts' reasoning will be comforting to anyone still living who actually believes in the concept of natural law.

Do you include Social Security and Medicare in your notion of "any government programs"? They are wildly popular, and deeply woven into American life, as Mr. Bush2 learned when he tried to mess with them. They were controversial when passed, with all the lip-flapping now devoted to health care. They are also reasonably well-run, and adequately funded for the mid-range future. ObRomneyCare, which is much less intrusive, and which is quite popular in Massachusetts, may follow a similar trajectory. I hope so. Your gee-whiz numbers are over-hyped and hyper-ventilated – if you go far enough into the future, you can make any number as big as you need to panic the credulous.

Now, as to this 'hyper-partisan' nonsense, only one of us – in the posts and comments on ObRomneyCare, has included both sides of the ledger – revenues and costs. Me. So where this charge that I am ignoring the costs comes from is a mystery. The costs you quote are far into the future, when assumptions rule the day. The non-partisan CBO suggests near budget neutrality over the first decade – I repeat, in case you missed it the first few times, that they are probably optimistic, but the sky is just not falling.

Personally, I think that health care is a much better use of our money than, say, unfunded foreign military adventures that have Nothing to do with real defense. There will need to be decisions about where to place our common investments, but chicken-littling the issue is not helpful, and mighty partisan, too.

Finally, as a numbers guy, you are surely aware that tax burdens generally are the Lowest they've been in 80 years. Any solutions that ignore the revenue side of the ledger are – well, you said it – hyper-partisan. Everybody needs to kick-in (and kindly spare us any misleading stats that speak more to the rapid growth of income inequality than actual equity).


Posted by spcwt, a resident of Danville,
on Jul 17, 2012 at 1:17 pm

You're like the guy who's broke, but thinks he can afford a new car. Where will he get the money to pay for the car? Simple. Just don't pay rent.

You ignore that we don't have enough money to pay for $50 - $70 trillion of existing commitments to Medicare and Social Security. That's the rent we owe. And Obamacare is the new car.

In considering Obamacare's new financial obligations, I ignore Obamacare's new taxes, as every tax dollar spent on Obamacare is a dollar that cannot be spent making Medicare and Social Security solvent. You can't congratulate yourself for paying for a new car with money you owe for rent.

You say Medicare and Social Security are "well run." What a joke. How is being underfunded by $70 trillion considered "well run"? Wait until Baby Boomers retire en masse and costs explode.

Cuts will need to be made. The only question is how deep. Even Obama recognizes that. Remember last year when he proposed a modest $380 billion of cuts to Medicare & Medicaid? Even with those cuts, we'd still be short balancing our budgets by over $1 trillion per year.

Web Link

And you can't tax your way out of the Medicare and Social Security fiscal mess. Even if you confiscated all of the income of the top 1% (all $1.3 trillion of it), that still wouldn't be enough to make these programs solvent.

Your point that you'd rather we spend money on Obamacare than on the wars is similarly flawed. That's like the broke guy saying he'd rather spend money on a new car than spending it on booze. Uh.. yeah. It's still money we don't have. Why don't you try paying your rent first?

As part of the 1%, I know you think I should pay more. Personally, I am tired of paying over 50% of my wages in Federal and State taxes. That's not the statutory rate. Literally, HALF my wages go to taxes. I wouldn't mind so much if it were spent solely on the elderly and poor, helping Medicare and Social Security remain solvent. But Obamacare? No way. Obamacare thinks it's more important to give a guy making up to $89,000 a $10,000 annual health insurance tax credit than to take care of the elderly. Not me. If a guy's making that much, he can take care of himself.


Posted by Tom Cushing, a resident of Alamo,
on Jul 18, 2012 at 8:18 am

1 -- we aren't broke, you or I, or the Treasury. We do differ on how we allocate our budgets, and whether just a part-time job provides enough to cover our commitments. If not, guess what -- we need to generate more revenue.

2 -- you and I will Both pay more, as we both should, in my view. You seem to think this position is driven by envy -- it's not. It's driven by a sense of duty that you seem to lack. So be it -- see you at the polls.


Posted by spcwt, a resident of Danville,
on Jul 18, 2012 at 9:29 am

Reminds me of that scene in Doctor Zhivago when he returns from the front shortly after the Revolution to his home in Moscow, and he's greeted by a very large collective of persons who occupy his home as their new residence. His own family has been relegated to a single room in the house.

He's told, "Congratulations comrade. Your home and possessions have been liberated for the people."


Posted by Tom Cushing, a resident of Danville,
on Jul 18, 2012 at 4:09 pm

Tom Cushing is a registered user.

You know what? There was a time when calling someone else a Commie was fightin' words, but in this context it's just laughable. Basically, anyone who'd suggest that knows little enough to not be taken seriously.

Sorry, sp, but there's no point in continuing this dialog at that level.


Posted by spcwt, a resident of Danville,
on Jul 19, 2012 at 8:16 am

Big government is taking half my paycheck in taxes and then you're telling me I'm not giving enough. How much is enough? 75%? 95%? At least the Commies let Dr. Zhivago keep one room of his house. You make them sound almost generous.

Unlike Wall Street fat cats, high wage earners like me get screwed when it comes to taxes on wages. Time and again I've made that point, which you willfully ignore.

Worse, you say I don't have a "sense of duty" just because I don't support your big government "solutions," as if big government is the only solution available.


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