Exclusive: The U.S. Supreme Court went to the brink of striking down a major act of social legislation for the first time since the New Deal before being pulled back by Chief Justice John Roberts. But he still gave right-wingers a consolation prize by enshrining into legal precedent their false founding history, writes Robert Parry.
By Robert Parry
U.S. Supreme Court Chief Justice John Roberts is getting praise from some quarters and condemnation from others for judging the 2010 health-care law constitutional, but in doing so Roberts also established, now as a constitutional principle, the false historical analysis that has long dominated right-wing legal circles.
Although giving the Affordable Care Act a thumbs-up by citing Congress’ taxing authority, Roberts gave a thumbs-down to Congress’ reliance on the Commerce Clause to justify the law’s legality. In that part of his ruling, Roberts, in effect, rewrote the nation’s founding document, second-guessing the Framers’ decision to grant Congress sweeping power to regulate interstate commerce.
John Roberts at the Sept. 5, 2005, announcement at which President George W. Bush nominated Roberts to be Chief Justice of the U.S. Supreme Court. (White House photo by Paul Morse)
In Roberts’s decision, you find references to the faux founding history that the Right has been assembling over the past several decades, including “research” funded by right-wing billionaires such as the Koch Brothers, who have bankrolled libertarian think tanks like Cato and academic centers at places such as George Mason University.
While the American Left has largely sat on the sidelines, the Right has been busy cherry-picking a few quotes here and there from the Framers to turn the likes of James Madison (the Constitution’s chief architect) into free-marketeers who wanted a weak federal government and believed fervently in states’ rights.
Roberts, like the other four right-wing justices on the Supreme Court, was born and raised professionally in this incubator of manufactured history and that “group think” colored his legal “reasoning” in striking down the Commerce Clause as a constitutional foundation for the Affordable Care Act.
So, for instance, you have Roberts making the obligatory right-wing reference to Madison’s Federalist Paper No. 45, in which Madison sought to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.
Rather than view this essay in context or even note Madison’s expressed enthusiasm for the Commerce Clause in No. 45 the Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.
In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”
Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
But the Right generally ignores another part of No. 45, in which Madison writes: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.” (In his ruling, Roberts did mention this line from Federalist Paper No. 45, however, he spun Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.)
The Constitution’s Power Grab
The Right also dances around the context of the Constitution itself. It was the greatest shift of power from the states to the federal government in American history, but the Right never wants to admit that fact.
The Constitution can only be understood in contrast to what it replaced, the Articles of Confederation. That original governing framework (from 1777 to 1787) failed the nation because it made the states sovereign and independent and left the federal government weak and dependent, essentially a supplicant begging the states for resources.
Madison and his Virginian ally, General George Washington, were among the earliest to understand the profound flaws of the Articles of Confederation. Washington’s experience was perhaps the most searing since he watched his Continental Army suffer from lack of supplies and shortage of pay because states reneged on promises to fund the central government.
After the Revolutionary War, key Founders also recognized that U.S. independence was endangered by how weak the federal government was under the Articles of Confederation. One particular concern was how European powers tried to play off one state or region against another through the manipulation of commercial relations.
This threat and the need for a more coordinated policy toward national commerce gave rise to Madison’s idea of giving the central government control over interstate commerce, a proposal that Madison first raised as a possible amendment to the Articles of Confederation.
Madison “sponsored a resolution instructing Virginia congressmen to vote to give the federal government the authority to regulate commerce for twenty-five years,” wrote Chris DeRose in Founding Rivals.
Madison’s resolution won the support of General Washington, who wrote to Madison, saying: “The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”
Though Madison’s amendment failed, he kept the idea alive as part of a more drastic scheme to consolidate power in the hands of the federal government through a constitutional convention.
On Dec. 9, 1785, Madison wrote to fellow Virginian James Monroe that “It is more probable that the other idea of a convention of commissioners from the states for deliberating on the state of commerce and the degree of power which ought to be lodged in Congress, will be attempted.” [See DeRose’s Founding Rivals.]
Rewriting the Rules
When that day arrived in spring 1787 with a convention called in Philadelphia to amend the Articles of Confederation Madison unveiled his radical alternative, not simply some modifications to the Articles but an entirely new system that wiped away the Articles’ language about the “independence” and “sovereignty” of the states.
On May 29, 1787, the first day of substantive debate at the Constitutional Convention, a fellow Virginian, Edmund Randolph, presented Madison’s framework. Madison’s Commerce Clause was there from the start, except that instead of a 25-year grant of federal authority, the central government’s control of interstate commerce would be permanent.
Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation such as a productive impost [or tax] counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c.”
In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum &c &c” notation suggests that Randolph provided other examples off the top of his head.
Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”
So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.
Through the hot summer of 1787, the Convention delegates debated Madison’s plan, amid the give-and-take of compromise, reining in a few of Madison’s most radical ideas. Contrary to the Right’s current propaganda, Madison actually favored even a more powerful central government than the Convention eventually adopted.
Madison wanted Congress to have veto power over state laws, a provision that was dropped though federal statutes and treaties were made “the supreme law of the land” and thus federal courts could strike down state laws that were deemed in violation.
Opposition Rises
Despite some concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power a reality not lost on some influential politicians who favored a continuation of the states’ “independence” and “sovereignty” that were explicitly recognized by the Articles of Confederation, but which disappeared in the Constitution.
Anti-Federalists correctly recognized what had happened and soon rallied strong opposition to the new governing framework. As dissidents from the Pennsylvania delegation wrote: “We dissent because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.”
As resistance to Madison’s federal power-grab spread and as states elected delegates to ratifying conventions Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.
So, Madison along with Alexander Hamilton and John Jay began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.
Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.
For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause.
“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.
“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”
What Madison demonstrated in No. 14 was a core reality about the Founders that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18th Century.
Twisting the Facts
But today’s Right will never accept facts and reason if they go against a desired propaganda theme. The outcome comes first and the rationale is assembled later to support the desired conclusion. Then, the faux history is packaged and distributed through the Right’s multi-billion-dollar media infrastructure.
Thus, many Americans think they are defending the nation’s founding principles when they buy tri-corner hats at a costume store, unfurl their “Don’t Tread on Me” flags, and denounce the evils of “guv-mint.” They insist that the last thing the Founders would permit would be a “mandate” to buy a private product.
However, the Right again shuns history, such as the fact that the Second Congress, which included Madison and many other Founders, passed the Militia Acts mandating that every white male of military age must purchase a musket and related supplies. The law was signed by George Washington, another Founder. [See Consortiumnews.com’s “The Founders’ Musket Mandate.”]
In striking down the Commerce Clause as a justification for the Affordable Care Act, Roberts also parroted the Right’s propaganda line that it is not commerce when an American chooses not to buy health insurance. However, that ignores the fact that virtually every American is involved in the commerce of medicine from birth and reenters that “market” periodically, especially near the end of life.
The failure of some people to obtain health insurance, to essentially choose to self-insure, is still part of the larger commerce of medicine, which operates across state lines and thus is within the congressional power to regulate interstate commerce.
Yet, Roberts joined his right-wing colleagues in saying that the Commerce Clause only allows regulation of “existing commercial activity” and that the insurance mandate “compels individuals to become active in commerce by purchasing a product,” a principle that Roberts said could lead the federal government to require other mandatory purchases.
However, Justice Ruth Bader Ginsburg, writing for the four more liberal justices, noted the fallacy of Roberts’s argument. “Unlike the market for almost any other product or service,” she wrote, “the market for medical care is one in which all individuals inevitably participate.”
In the end, Roberts found a way to square his right-wing ideology with his concern that a five-to-four partisan vote to strike down a major piece of social legislation — for the first time since the 1930s — would damage public faith in the Supreme Court.
But he delivered a consolation prize to his right-wing compatriots by essentially rewriting the Constitution’s Commerce Clause, which has been a bête noire to the Right since the days of Franklin Roosevelt’s New Deal and the Civil Rights Era of the 1950s and 1960s.
Honest Conservatives
More intellectually honest conservatives recognized the historical reality that the Framers intended the Commerce Clause to be a power limited only by the political will of the elected branches.
For instance, a legal opinion written by conservative U.S. Appeals Court senior judge Laurence Silberman affirmed the constitutionality of the Affordable Care Act on Nov. 8, 2011. Silberman, an appointee of President Ronald Reagan, explained how the law including the individual mandate fit with the Commerce Clause and prior legal precedents.
“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).
“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.
(In Roberts’s ruling, the Chief Justice arbitrarily decides that certain definitions for “regulate” — such as “[t]o order; to command” — can be thrown out because they were not among the top definitions in the dictionaries of the late 18th Century. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.'”)
Silberman’s opinion also examined decades of Supreme Court precedents that affirmed the power of Congress to establish regulations over various national markets.
“Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.
Neither limitation applied to the health-care law, Silberman noted, because medical insurance was an economic activity and had sizable interstate implications.
As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.
Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts call “substantial effects.”
“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.
“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce.
“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.
“Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”
Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services as rather useless as that would be is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”
Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds,” but added that “we are obliged and this might well be our most important consideration to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”
Ultimately, Chief Justice Roberts sought to split the decision, adding new limits on the Commerce Clause but finding a way to sustain the constitutionality of the act by citing a back-up justification in the congressional power to tax.
In that way, Roberts may deserve praise for a judicious choice, backing away from another instance in which the Supreme Court injected itself into ideological and partisan battles. But he has now enshrined the Right’s bogus history of the Constitution into judicial precedent.
To read more of Robert Parry’s writings, you can now order his last two books, Secrecy & Privilege and Neck Deep, at the discount price of only $16 for both. For details on the special offer, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.
At the end of the day, all this “construction” of the Constitution and the reactionary politics that the right has embraced all stem from the election of an African American as president. Before 2008 all this brouhaha would have neatly been considered “honest, fair and open bipartisan debate.” But now there is a tripwire polarizing issue that has created a new tipping point for prejudice against reason and decency. Too bad; I thought this country had laid this mentality to rest in 1963 by the tall guy in the tall stovepipe hat. Why can’t we learn to live in a multiracial, pluralistic society? I guess the Constitution cannot provide the trackwork for that; it comes from what is in our hearts and our sense of fair play.
Rehmat,this one American who knows that you are speaking the truth,our nation is under the control of dual citizens who care not one whit about Americans,but Israel uber alles.
This health care ruling institutionalizes corporate rape and plunder(Israeli tithes) of our dough,and Roberts,if nothing else,is a money man.His vote was Kabuki theater to undemonize the public perception of a reactionary court,but the people who voted against this terrible ACA(an oxymoron to go alongside the Patriot Act,that steals our freedom,instead of our dough)are the actual progressives,in this case.
Right’s Fake History
Robert, you provide valuable factual information as to the history in the forming of this nation. However, let’s understand that “history” or as one suggests, his story, has been selected and written through the narrow lens by the educated nobility of Europe and Israel. How many know, for example, that The South Sea Inc., as well as French and Spanish venture capitalist sent armies to this continent looking for resources and new avenues to fulfill John Law’s theory that credit would create a permanent Cornicopia of wealth? The kings, by “divine” authority gave title to land already inhabited just like what’s taking place with our scavenger wars of choice in The middle East. We in this long inhabited “new” world won a tentative freedom because England, France and Spain fell Neck Deep into debt mainly from the high cost of expansionalistic ever increasing war debt. Back to square one!
After reading many writings of James Madison–with an open mind rather than with an eye to prop up my own personal beliefs–I feel that Mr. Parry has chosen to blatantly select his quotes of Madison to justify the use of the Commerce clause to defend the Affordable Healthcare Act.
With the Commerce clause, Madison and the framers were trying to prevent one state from limiting trade with another state by law or by imposts. The fact that the clause has repeatedly been used to justify consolidation of the federal authority is not a Madisonian idea. I would point Mr. Parry to Madison’s March 3, 1817 Veto Message to Congress on appropriations for internal improvements, including roads and canals (which the federal government today does fund.) In it Madison writes, “The legislative powers vested in Congress are specified and enumerated in the eight section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.”
If Mr. Parry is looking for a founder who wanted the complete consolidation of power at the federal level, I would suggest Alexander Hamilton. And I will add that, contrary to the inference in the piece, Hamilton was the one who initiated the Federalist Papers, not Madison. They were written to convince the majority anti-federalist state of New York to ratify the Constitution. Hamilton started the project with John Jay who contributed until he became ill, at which time Hamilton enlisted the help of Madison who was attending Congress in New York.
Lastly, I wonder if all of the people who love the Commerce clause as an excuse to extend federal power have ever thought of the consequences of that? In California, we had to beg the federal government for a waiver to have stricter state environmental laws than the federal laws. And when our state legislature passed a law to regulate automobile tailpipe emissions (not gas mileage), the federal government sued and won in federal court saying that only it had the authority to regulate that. California also passed a law to legalize medical marijuana, but the federal government still arrests our citizens. These are examples of the dangers of federal usurpation.
Thanks for your insightful remarks but what exactly is the federal government these days? Is it a solid? amorphous? living or dead thing? Does some hidden organization, force or third party really run the whole show? California might have done better to disregard the federal court’s environmental ruling with a “no taxation without representation” campaign. Yes, provoke a constitutional crises. We missed a chance to examine this thing called “federal”. Could you imagine it? on every bumper sticker! we’re not paying, or tenth amendment rights! go away Uncle Sam! This blabber isn’t all that far fetched, some of counties along California’s northern border have a notorious and extreme dislike for federal agents who go about probing their citizens for the whereabouts of some of the “most wanted”. The federal boys got the message fast and usually keep out. I dare say, some counties don’t like any association with the word, California either. My real point is, our so called congressmen and senators can’t find the time to peruse one scintilla of the bills they sign off on. Each re-election campaign depends solely on filthy rich supporters who inevitably dominate their every action, as if they’re some storefront window mannequin. How else would we find ourselves subject to the Patriot Act? What constitutional protections do we have now? My peace of mind rests on the fact that we are a violent, well armed nation of people who never forgot how to circle the wagons or keep our powder dry!
Really, there is some problem here.
> who have bankrolled libertarian think tanks like Cato
Damn people considered bad are giving money to somebody who thinks different than me! This is somehow bad.
“Donate today”
Ummm. Yeah? Apparently the left is full of lousy businesspeople or are a skimpy lot. Not sure which.
And really, so much verbiage and looking at one’s own navel through the left/right kaleidoscope of confusion when it all comes down to economics.
“Show me the money to make everyone affordably healthy”
14 trillion dollar crater, and deepening.
Ok then.
boring borat-this is not appropriate. Jews today are NOT semitic-look at bibi or Avigdor Lieberman, so stop this tired response. Rehmat is wrong here, but irrelevant. It is the rightwing influence that is the danger, not religion or culture.
Be it a review detailing the opinions of a supreme court judge or some minutiae within the Health Care Act, the ultra right wingers with their hoards of money are unethically fostering a skewed, privately held political opinion(s) and societal value(s). Once the panic button is pushed and nothing but raw chaos and riot happens, they will have to personally answer to the American People and the Justice Department for their part in inciting (any) level of insurrection or bloodshed; should it come to that. The deliberate manipulation of public opinion without Equal air time on major radio and television programs for the less popular, wealthy or influential, will only stoke the the fires of civil war (yes it’s beginning to rear it’s ugly head again). Something our country’s billionaires may soon and for a long time, come to Regret. Clear Channel Corporation and their twin brothers, Fox News et al. and the Rush Limbaugh (types) are scandalously choking off a meaningful and equal exchange of opposing opinions and philosophies. I’m suggesting the appearance of new, aberrant behaviors found amongst TV/cable talk show hosts angrily shouting down the guest speakers, or deliberately interrupting them whilst in the throes of developing an idea (perhaps one that the host doesn’t want to hear or broadcast), showing threatening gestures, body language or using physical violence on the set and yes, to a lesser extent, those same methods suppressing free speech have “Trickled Down” to the public square. Police are confiscating bullhorns from protesters-it’s now enforcement policy! Bad enough that the fuming citizenry must witness the civil rights of empty headed teenagers assiduously preserved, leaving them “free” to blast loud “music” while cruising along until the car wheel lug nuts fall off from vibration. The many contradictions of what constitutes the preservation of our inalienable rights are piling up i.e., NDAA, Patriot Acts, that Nazi phrase, “let me see your papers” and the total weight of them can only end in national disaster unless we all agree to an open, candid, and equal time series of debates.
Not even factually correct:
Chief Justice Roberts, Roman Catholic
Justice Alito, Roman Catholic
Justice Scalia, Roman Catholic
Justice Thomas, Roman Catholic
Jusyice Kennedy, Roman Catholic
Justice Sotomayor, Roman Catholic
Justice Breyer, Jewish
Justice Ginsberg, Jewish
Justice Kagan, Jewish
Note that the honorific of Justice does not imply justice… but nevermind that…
What does the religious affiliation of the individual members of the court have to do with the article at hand to which you’ve posted your false statement?
Are you to judge by my surname what my attitudes are on any given issue?
The REALLY scary thing is that none of them are atheists or agnostics. I’m tryin’ not to laugh, but if there’s anything to be afraid of, it’s all those Catholics who, if they’re true believers, subscribe to Papal Infallibility. If there’s a medieval organization left, it’s the Vatican, the longest standing theocratic bureaucracy in human history. Rehmat should feel right at home with odds like that! After all, if the Supreme Court re-opens the inquisition, it’ll be six to three. I’m laughing out loud and trying to imagine what Mel Brooks would make of those odds.
You are right, but those thinkers would NEVER be allowed any public post in the USA, especially the SCOTUS, which is completely partisan in appointment and the antithesis of democracy.
As for Catholic doctrine, I notice that as evinced by present leaders like Paul Ryan and Boehner as well as 6 of the SCOTUS,it bears as much relationship to Christ as the actions of the Rapturists and some other evangelicals. Care for the poor, peace and goodwill towards all men ….If the USA is a christian country, Christ must be appalled.
“In the end Roberts found a way … would damage public faith in the Supreme Court.”
WHAT BS. If Roberts were concerened about the public faith in the Supreme Court he would have never instructed the Citizens United group to reargue the case and expand their arguments so he and the rest of R.A.T.S. plus K. (Roberts, Alito, Thomas, Scalia, plus Kennedy) could overthrow a century of precedent with regards to campaign finance and open the flood gates for corporations, including foreign ones who can merely run cash through American subsidies, to buy elections and influence political policy.
What I believe John Roberts did was to realize if he joined the rest of the RATS plus K it would give President Obama an issue on which to campaign in the fall. By upholding the constitutionality of the Affordable Care Act Roberts has taken away from President Obama and the Democrats this issue and has GIVEN the issue to the Tea Party and the Republicans. Chief Justice Roberts upheld the act because it is a TAX so no the Tea Party and the Republicans can quote John Roberts and run agains President Obama and the Democrats greatly increasing taxes on the American people across the board.
I believe that John Roberts did the political calculus. Vote to declare the Affordable Care Act to be unconstitutional and risk a backlash against Republican candidates allowing President Obama to win reelection and name judges for the next four years. Vote to delcare the Affordable Care Act to be constitutional as a TAX and give the Tea Party and Republicans an issue they can use to defeat President Obama and install a Republican President and Republican Senate which will over then next four years install judges who think like John Roberts.
The FACTS are that the first Congress in 1790 mandated that ship owners buy medical insurance for their seamen, a law signed by President George Washington. Six years later in 1798 Congress addressed the problem that the 1790 mandate covered drugs and physician services but did not cover hospital staays by mandating that seamen purchase hospital insurance for themselves, a law signed by President John Adams. A year of two ago Tom Hartman noted the 1790 mandate for hospital insurance on his program but that talking point has been drowned by the deluge of Tea Party talking points funded by big and corporate money interest let to flow by RATS plus K in Citizens United.
I should point out that John Roberts stayed with RATS plus K in denying even a hearing to the Montana case which would have challenged Citizens United.
Someone in the Supreme Court CHANGED THE NAME ON THE CASE before they made that decision, perhaps because some “friends of the Court” had petititioned that because of the 11th Amendment that the Court could not hear the Montana case and that the decision of the Montana Supreme Court banning corporate money from campaigns should stand.
Chief Justice John Roberts in his actions has shown that he is not the “umpire” that just calls “balls and strikes” as he, under oath, told the U.S. Senate during his confirmation hearings. Instead the “umpire John Roberts” on taking the roster from the manager he doesn’t like kicks that manager our of the game and then rewrites that rouster so that the Pitcher now bats fourth and no longer is the Pitcher but is the Catcher. The Catcher is now the shortstop, the shortstop is now the pitcher, the first baseman becomes the Center fielder, the center fielder becomes the Third baseman, the third baseman is sent to right field, the right fielder is sent to second base, the second baseman is sent to left field and the left fielder is sent to first base.
Can any of you talking heads write anything without labeling the other side, I’m so sick of hearing right or left wing whatever! It’s sickening. How about thinking about what is good for the country and the AMERICAN people. I’ve voted Democrat for the last 50 years but now I’m tired of supporting the people who are too lazy to work to supposrt themselves and/or get get healthcare. I’m tired of the class warfare. I’m tired of kids looking for the government to subsidize their education. (My father worked two jobs so we could go to college)I’m tired of the out of control unions & I come from a union family. I’m tired of the government failling to control the borders and then blaming someone else for everything that goes wrong. I’m tired of the Bush bashing, it got old 3 years ago. I’m tired of people not taking responsibility for themselves and their actions. I’m especially tired of bloggers and columnists who think they know what the American people want & dont, but don’t have the cojones to have an email addres so people can contact them and tell them how we really feel. Wake up America before it’s too late, it almost is.
Amy,
You are probably suffering from hardening of the arteries. As a seventy year old I understand your frustration that the world isn’t the same as it used to be. But face the fact, it is not. You cannot go back to before. You want to spend less money so you buy goods made in Asia which means people in this country do not have the manufacturing jobs. The stores that sell you the goods hire people part time and do not provide them with a living wage or benefits (as the old locally owned stores “downtown” used to do). Your father would have to work six jobs to get you through college now – have you checked the prices of even the state Universities? I am not sure about the border “problem”, I know it must have diminished in the last six years, since I remember Lou Dobbs talking about the twenty odd million undocumented immigrants – not they are saying eleven million (so either Lou lied or they are doing something about it). You are tired of the bloggers etc. but you also think you know what the people want or don’t.
Hi, Amy. You’ve made your views known. It comes down to a list of things you’re “tired of.” For example, people with a point of view that are unconcerned about the American people; people too lazy to work to get healthcare; people engaged in class warfare; young kids looking for a free ride to a college education; young kids not lucky enough to have a dad with two jobs; unions out of control; borders out of control; finger-pointers, bloggers, and columnists who think they know it all and hide from people.
I agree with you that America has problems and it’s wake-up time. Here’s how I feel (I purposely said “I” because I don’t pretend to speak for anyone else). Can you come up with some positive suggestions to cure the problems you’re “tired of?”
Amy,
I suspect that you are not really a seventy year old woman. My grandmother wouldn’t have had any idea how to spell cojones, or even what it meant when she was seventy one. Your comments remind me of the ones made against Julian Assange on this website: “He should face the charges against him”. Everybody overlooks the fact that there ARE no charges against him in Sweden. The whole thing is trumped up, and those blog comments are probably being posted by people on the U.S. Government payroll. They have no email addresses because they are what the internet calls “trolls”. You are, I suspect, a troll that works for the government or the repuglican party.
Yes, FGS, I have to agree with you about ‘Amy’ – – – the writing just doesn’t have the ‘style’ or ‘sense’ of a 70+ yr old woman, even a feisty one. My guess would be a young white male (15-30) Tea-Party troll because ‘her’ letter covers their typical talking-points.
No wonder the USA is in the position it is . It is populated by individuals like amy who have NO solidarity or care for anyone but themselves. This is not a country but 310million selfish persons.
Amy, By the way, do you have an “email addres” where you can be contacted? And does it really matter, since you are being contacted right here.
Re: the hardship in your family- assuming your comment is for real- did you dad have to pay $50k per year adjusted for 1950 dollars for a college education for himself? Or, did he have to help his kid pay it after the family house was foreclosed? Hard work is a sine qua non, and for one who did work two jobs to pay for professional school, that was a reality one had to accept, but the world is different, costs are much higher, and, face it, we are in a deep, deep recession where only the very few have the opportunity to sail freely- and we now live in a world of perpetual war of our own making, and where the “national security” laws in our country have been leading us down a road to fascism worse than what your dad would have been living with at the end of the McCarthy period.
And, sorry that you are so offended that people have expressed their dissatisfaction online. It is a good way to learn what your fellow Americans are thinking, whether or not you agree.
Amy, who made you read this blog, anyway? Why do you punish yourself by reading material that causes you so much angst??
I wonder if there is a limit upon how many twists and turns these pretzels can perform before they break into pieces. They strain reason to the point of pain. The health care mandate was originally a conservative idea, and yet Tea Party types and Obama haters on that side strove to defeat it. They should be adoring Obama, not castigating him.
Your argument is a two-edged sword. True liberals and progressives should be adamantly opposed to a law that makes corporate insurance companies and their shareholders more powerful than ever.
If pointing out that people don’t buy health insurance because they can’t afford it is “straining reason to the point of pain” than your mind is rotten to begin with.
Democrats can spit all the mindless bile they wish, soon they will realize that Obama has made America into more a of a corporate oligarchy than it ever was before. What protections are there against insurance companies jacking up their rates even higher once people are forced to buy in? Did you even think of that?
Of course, if you think outside of your little left-right box altogether, you would realize that the “tea-party” types aren’t that different from the occupy folks. Its the media who demonizes both. If you can’t see past the negative mass images, you are simply gullible. The people on both sides of the aisle are sick of the 1%.
They should also be opposed to a law that introduces a regressive tax on poor and working class people who don’t have insurance. In effect, that is what the ACA does, and that is what the SCOTUS upheld as constitutional. It’s a regressive tax that places the burden of providing “affordable health care” on those who can least afford it.
And liberals think this is some great victory.
Also, I wonder. Doesn’t this decision requiring all but the most destitute to buy an insurance policy viewed as a “tax” mean we pay a tax to a financial corporation?
Yes, I think that is about right. Since the US has foregone any sort of single-payer system, what we are doing is now paying a tax to the greedy insurance companies so that we may be graced with their limited protection should we get sick. Of course, they will continue to make a profit one way or another, which means that the customers will either be charged too much or that the companies will refuse to pay out when it is time for them to pay. This is just the nature of the for-profit health insurance industry.
No, the “tax” or “penalty” (whatever) is paid to the government by anyone who refuses to purchase insurance.
Thank you, Jay, for bringing this discussion out of the meme political arena. Also, thank you Robert Parry for initiating a discussion of The Constitution of the U.S. Our constitution is the shortest constitution of any on Earth today, yet too many people fail to “occupy” the Constitution believing these matters best left to “experts” and that notion in and of itself moves from a democracy of the people into an authoritarian top down hierarchal system, ie, fascism. Thomas Jefferson felt that each generation should take the responsibility to update or rewrite the document as we progress toward “a more perfect union”. In my opinion Scotus has overstayed its welcome. The supremes, originally, meant to be wise and experienced to remain above political fray, have become just another instument attempting to frame all concerns of the living into a thin two sided wafer. Both major parties vie for the right to be “the leader” of the pack and neither has the knowledge or power to solve problems. However, when it comes to creating problems–they are the experts!
Amen to that! If those who claim to be following the Founders intent need to use a pick and choose method of quotes, usually out of context, to prove their points they are deluding themselves or simply lying.
None of our so called “representatives” regardless of party affiliation, seem willing to take the the history of our country, warts and all, into consideration. They twist, spin, deny, exaggerate, and outright lie to convince others that their view is the right view.
The problem with that is, if you truly believe you are right, you will be able to support your view with truth. If you have to resort to lies and subterfuge it is time to question just what your beliefs are based on.
Another point of interest in the Chief Justice’s opinion was his ruling that the Anti-Injunction Act (which would have barred the Court from taking up the Health Care Act since no one had yet paid the tax, and hence no one who was harmed was available to have standing to bring the case) did not apply since Congress did not deem the penalty a tax. So, for purposes of avoiding the question of standing to bring the case, Roberts rules the penalty is not a tax; but for purposes of upholding its constitutionality, he later rules that it is.