Justice Roberts Pleads: 'Lie to Me'

By C. Edmund Wright

When the shocking ObamaCare ruling came from the Supreme Court Thursday morning, the reaction from the conservative pundit class started with befuddlement -- then worked through confusion, shock, and of course anger.  Later in the day, however, the pundit elites started to furrow their brows and dust off their elbow patches -- and proceeded to try to convince us rubes that we had overreacted.  They treated us to all kinds of contorted rationalizations and justifications full of pseudo-intellectual gobbledygook.
We got this from Charles Krauthammer, George Will, Thomas Lifson, Erick Erickson -- among others.
And while I really tried to like it -- and really tried to find solace or a silver lining -- there are just some basic, fundamental things I could not ignore.  The bottom line is that John Roberts just told Barack Obama and Nancy Pelosi figuratively to "lie to me...lie to me and I'll like it!"  One can only wonder if he liked it as much as Chris Matthews liked the leg tingle or as much as David Brooks liked the sharp crease.
Apparently he did.
Whatever the case, our Harvard-educated chief justice -- undergrad and law school --  just made it the law of the land that as long as a president and House speaker and Senate leader lie long enough and in a bald-faced enough way to the entire nation about a society-changing piece of legislation, what they pass is just fine and dandy if we can eventually admit that it's a tax.
Actually, it's more of a stretch than that.  Technically, not Obama or Reid or Pelosi has yet admitted that it's a tax.  Roberts even did that for them -- and thus he found a perverted way to call it constitutional.  He did it to himself.
Don't Ivy League folks say and do the darnedest things sometimes?  Next thing you know, we'll have a Treasury secretary who can't figure out TurboTax.
But the chief justice's crimes against the Constitution did not stop with memorializing and rewarding dishonesty.  He gave logic and reality a good whipping as well.
"Under [my] theory, the mandate is not a legal command to buy insurance," Roberts wrote.  "Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income."
Huh?
Yes, Roberts actually wrote those words in what will certainly go down as his most famous and studied work ever.  Our Ivy League-credentialed chief justice just wrote that going without insurance can be taxed just like income and buying gas, without realizing that many people do not make income or buy gas. 
It must have escaped Roberts that you can avoid making income -- which is ironic, since many of the folks celebrating his ruling avoid just that.  And he missed that you can also avoid buying gas.  Heck, Obama's energy secretary avoids that.  But now, under Roberts's own theory and using Roberts's own words, you and I cannot avoid buying insurance without being taxed as a result.  And as we mentioned, our Treasury secretary -- not to mention the former Ways and Means Committee chair -- manages to avoid being taxed. 
Beam me up, Scotty!
This ruling is just beyond foolish.  It is parallel universe stuff.  Antonin Scalia said in his dissent that "the Court today decides to save a statute Congress did not write ... [it]  regards its strained statutory interpretation as judicial modesty, it is not. "
Let me translate: you just wrote a bill that did not really exist so that you could uphold it on arguments that were not made -- and you are not half as smart as you think you are in doing so.
Scalia continued: "It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect."
Which reveals what is so shockingly naïve about the Roberts's ruling.  He thinks he showed restraint by virtue of what he ruled on the Commerce Clause -- all the while performing a bigger contortion under the guise of taxation to create something that cannot work and is not wanted and has not been passed.
What Scalia says, and I reiterate, is that ObamaCare was not enacted as a tax program, and therefore Roberts was writing a new bill to call it a tax program.  It is shameful and scary -- and there is no way that any of our Founders would approve. 
Ah, but our Founders were not privy to the wisdom of our current-day so-called conservative elite pundit class.  Wizards like George Will, who called it "a substantial victory" for conservatives by improving "our civic health by rekindling interest in what this expansion threatens -- the Framers' design for limited government."
So let me get this straight.  We had to lose to win?  We had to snatch defeat from the jaws of victory so that, theoretically, we can one day perhaps maybe win again on this very issue?  Maybe perhaps?  Huh?
And oh, no one had been rekindled until Roberts ruling?  Earth to Mr. Will: have you heard of the ObamaCare town halls?  Have you heard of the Tea Party?  Did you hear about Scott Brown, Chris Christie, Bob McDonnell -- and oh, the 2010 midterms?  Things have been rekindled for a while here. 
Yet this is elite conservative wisdom.  Frankly, I think Mr. Will needs to get out more.  Out of D.C. that is.
And then there's Charles Krauthammer, whose tortured logic includes the notion that Roberts pulled off "one of the great constitutional finesses of all time.  He managed to uphold the central conservative argument against ObamaCare, while at the same time finding a narrow definitional dodge to uphold the law -- and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration."
Again, we have to lose to win because, um, why exactly?  And to clarify, Roberts upholds the law by finding "a narrow definitional dodge" -- and this is finesse?  I think Sherman Potter called such "chinchilla chips."
To be fair, perhaps we just don't appreciate the munificence of Roberts the way Krauthammer does: "Why did he do it" writes Krauthammer,  "because he carries two identities.  Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court's legitimacy, reputation and stature."
Translating Krauthammer, we must be willing to sacrifice the Constitution today so that the body singularly charged with being the final gatekeeper of that document can maintain its moral imperative to maybe save the Constitution at some point in the future...maybe...perhaps someday.
Sorry, folks.  As we say in flyover country, "that dog won't hunt."  We just saw the Court sanction unlimited taxation on behavior and give permission to lie about it at the same time.  And no amount of tortured ruminations from elites can put lipstick on that particular pig.  Please.  Don't lie to me.A

Page Printed from: http://www.americanthinker.com/articles/../2012/06/justice_roberts_pleads_lie_to_me.html at June 29, 2012 - 07:00:22 AM CDT

The Chief Justice Done Good? We shall see...

By Dov Fischer

Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial needle with perfect precision.  The initial disappointment collectively felt by Americans who had hoped for a Supreme Court ruling that would overturn Obamacare soon will be replaced, upon further reflection, by the excitement that will come with a fuller appreciation of what the Chief Justice has wrought.
First, almost completely unnoticed, the Chief Justice voted with his four conservative colleagues in drawing an unprecedented red line against Washington wielding the Constitution's Commerce Clause in the future to justify federal intrusion into the personal lives of Americans.  This decision will restrict American Presidents and future Congresses for a generation and more.
Until Thursday's decision, for more than 70 years, virtually every leading Supreme Court decision on the reach of the Commerce Clause has sided with federal intrusion.  Although there have been isolated exceptions -- e.g., United States v. Lopez, 514 U.S. 549 (1995) (limiting federal regulation regarding carrying guns near schools) and United States v. Morrison, 529 U.S. 598 (2000) (limiting power of the federal government to expand rights of women to sue attackers) -- the leading cases on the Commerce Clause, often relying on precedents like Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress could prevent a person from growing wheat for his own personal consumption on his own private land), have held that the federal government can force Americans to do or not do, to buy or not buy, virtually anything if couched as an act to facilitate or regulate interstate commerce.  Wickard "always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence." (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, at 3.)
It was this very line of Wickard-consistent Supreme Court opinions that served as the basis for a long line of lower federal courts, both district courts and federal appeals courts, choosing to uphold ObamaCare as that bill was tested through the judiciary.  However, with Chief Justice Roberts almost surreptitiously joining with Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare is barred by the federal Commerce Clause, a new era has begun in Commerce Clause jurisprudence. 
Every liberal citation to Wickard will be countered by a conservative citing to Chief Justice Roberts's opinion: "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.  The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)
There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want.  An American cannot be compelled by federal mandate to eat or even to buy a proverbial stalk of broccoli. As a kosher consumer, the federal government cannot wield that clause to impose on me an obligation to purchase non-kosher food supplements. The rules guiding lower-court wrestling matches over federal power to invade Americans' private lives now have been reset remarkably by Chief Justice Roberts.  Few today notice what he has done.  Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington's intrusions.
It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news.  However, attorneys and certainly law professors get it.  We know what happened on Thursday.  It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore.  Only the trained insiders know what that rumbling will cause in the future.  This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government's unbridled abuse of the Constitution's Commerce Clause.  And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise.  And that is fine.
Secondly, Chief Justice Roberts has punted the whole ninety yards, so to speak, with the expertise of a professional football kicker whose team has the ball on its own 8-yard-line, then punts ninety yards, pinning the other team on their own two-yard-line.  Had Chief Justice Roberts sided completely with his four conservative colleagues, Obamacare now would be off the political table for the November elections.  Obama would be campaigning and mobilizing his troops' passions, arguing an urgent need to reconfigure the Court.  Romney, by contrast, would be trying to mobilize passion for a lackluster campaign that is impelled legitimately by one crying urgency: jobs and the economy.  However, Romney is not gifted at bringing people to their feet, not for applauding and possibly not for voting.  He is competent, perhaps excellent, maybe even extraordinary -- but his blandness does not generate passion.
Jobs and the economy are critical issues, but tricky ones to explain.  The federal government effectively shades statistics by hiding the full destructive impact of Obama's economic programs.  People who cannot find work at the compensation level they need and for which they are qualified -- an enormous population subset we call the "under-compensated" -- nevertheless are counted as "employed" when they settle for jobs below their previous attained levels.  Meanwhile, when others give up hope and stop looking for work altogether, resigning themselves to failure and long-term unemployment, they are deemed by statisticians to have removed themselves from the work force, so are not counted among the unemployed.  We the more sophisticated observers of the political process understand these statistical anomalies.  We understand that statistics declaring American unemployment at 8.2% really are closer to 12% and even 14% when we factor-in the plight of the underemployed and those who have given up hope.
Unlike the unemployment issue, where statistics are obfuscated, Obamacare is a signature campaign issue.  It is clear, comprehensible, simple -- and despised.  It galvanized, even helped create, the Tea Party.  Passionate opposition against the law led to a convulsive November 2010 election that resulted in fabulous Republican gains and the worst "shellacking" experienced by any political party in the modern era.  Two years have passed since 2010, and ObamaCare was about to be removed as a campaign issue in November. 
Instead, even as he cast a powerful vote to rein in the Commerce Clause as our Founding Fathers intended for it to be applied against federal intrusiveness, Chief Justice Roberts returned Obamacare front-and-center back into the November elections debate.  Defining it for what it really is -- a new, enormous federal tax on at least four million Americans (Slip op. at 37) -- the Chief Justice has lobbed a fat hanging curveball for conservatives to clobber.  The ObamaCare tax does not apply to those who presently are untaxed, and it will not apply to the more wealthy, who will be excused because they carry health insurance anyway. Rather, the President who promised no new taxes against the middle class conclusively has been "outed" by the Chief Justice as having imposed the biggest tax on middle-class Americans in a generation. 
Third, the Chief Justice has shifted the spotlight back onto Congress, primarily focusing its glare on the Democrat-run U.S. Senate, only four months before the elections. Republicans rapidly will beat down ObamaCare in the House like a piñata at a children's party.  It is an easy target.  It is excessive and intrusive.  It is financially devastating, will cause employers to drop health coverage for their employees, and will force millions to lose their preferred doctors and instead to settle on government-supplied alternatives.  Seniors will find that $500 million in coverage has been sliced out of their Medicare.  Employers will continue resisting expanding their work forces and reviving the flagging labor market while the issue remains in flux, assuring stagnating unemployment numbers through November. 
Fourth, the Chief Justice, while permitting the federal government to offer states more money to expand their Medicaid rolls beyond their fiscal capabilities, joined with his four conservative colleagues in banning Washington from penalizing states that turn down the federal inducements to march towards bankruptcy. As a result, the working poor will find that the federal government, while taxing them to buy new health coverage, has been left without a mechanism to compel others to pay for the ObamaCare state insurance exchanges.  So the feds will have to pay for it in non-cooperating states that are more fiscally prudent.  Only more taxes can pay for those costs. 
So Congress has a massive new mess awaiting it, all as voters prepare to vote for a new Congress and for 33 Unite States Senate seats, 23 now held by Democrats and their two "independent" allies.  House Republicans solidly will vote symbolically to overturn the legislative monstrosity, and they will find endangered House Democrats breaking ranks with their leadership to vote with them.  Senate Democrats facing reelection will be caught in a vise.  Harry Reid will be trying desperately to prevent a vote on ObamaCare repeal from reaching the Senate floor, even as national news coverage focuses on the two national parties' conventions.  Obama's staff may be renting Greek or Roman columns, but the Republicans will be toppling the pillars of the failed Obama Presidency
This is going to be OK, even fun.  Just wait and see.  The Chief Justice done us good.
Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County.  He blogs at rabbidov.com.

Poets on the Bench

Richard F. Miniter

It's been said that history doesn't repeat itself but that it often rhymes.  The Supreme Court, principally Justice Roberts, by finding that the people of the United States have no property rights the government needs respect, rhymes with Chief Justice Taney's majority opinion in Dred Scott that the negro has no rights anyone need respect.  All the federal government has to do is call it a tax.  Ipso facto, it's constitutional.
But where in the large universe of written record by the founders is there any hint that the people who wrote the Constitution Roberts cites would have considered ordering people to purchase a product a tax?  Because there's money involved?  A number that can be put to the exaction?  A number can be put to the government's order for you to buy a house, or sell it.  A number can be put to an order forcing you to buy your child a particular type of college education.  Ethnic studies come to mind.  A number can be put to an order not to buy a car and walk to public transportation.  To order you to buy solar panels from the companies owned by the president's cronies. 
You have no property rights under the Roberts ruling. 
And if you have no property rights, you have no property -- only what the governments allows you to conditionally occupy or hold.  Call it something else, because it's not yours.
And if you don't have that, you have no rights at all.
Nancy Pelosi crows -- an increasingly apt metaphor -- that "we made history."  She may be right, but not in any fashion which she or the forever smiling John Roberts understands, because the resonance of the earlier Taney ruling ended only with the Civil War.  This new verse on that very old theme may very well in turn overthrow a liberal establishment every bit as entrenched and seemingly permanent as that earlier "Peculiar Institution" which once controlled the score in Washington.
Which, as they were and are both rooted in the very same Democrat Party, only seems just.  Indeed, inevitable.
Richard F. Miniter is the author of The Things I Want Most, BDD, Random House.  He writes in Stone Ridge New York and can be reached at miniterhome@aol.com.

Conservatives’ consolation prize?

By George F. Will,

Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.

The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
The mandate’s opponents favor a federal government as James Madison fashioned it, one limited by the constitutional enumeration of its powers. The mandate’s supporters favor government as Woodrow Wilson construed it, with limits as elastic as liberalism’s agenda, and powers acquiring derivative constitutionality by being necessary to, or efficient for, implementing government’s ambitions.
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage.
By sharpening many Americans’ constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the “legitimacy barrier”: Is it proper for the federal government to do this? Conservatives can rekindle the public’s interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.
Any democracy, even one with a written and revered constitution, ultimately rests on public opinion, which is shiftable sand. Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.
georgewill@washpost.com

War!

By Mark J. Fitzgibbons

America is now at war. It is a civil war, but no shots will be fired. It's a war over the Constitution, yet it will be through the Constitution that the winner will be determined. 
The opponents in this war are not Republicans against Democrats. This war is between the American people and their government. Some of the American people, though, will choose -- have chosen -- sides with the government.
Too many Republicans have sided wrongly in this war. They justify their choice by calling themselves "compassionate conservatives," and such.
The government has many advantages over the people in this war. It has the authority to make law -- the very rules of this war. Government is legislator, prosecutor and judge, yet it is a contestant, too. Our government has clearly shown its contempt and disregard for the rule of law. In other words, our government cheats.
Obama doesn't merely cheat; he plays dirty.
Another advantage that the government has is the power to tax. As we saw today with the ObamaCare decision, the government institutes fines and calls them taxes, all in the name of "complying" with the Constitution. Our government lies.
Government routinely violates our First Amendment, Second Amendment, Fourth Amendment, Fifth Amendment and many rights endowed on us by our Creator. Government cannot take them from us. Our government steals.
This war can only be won by the people through the very Constitution over which we fight.
We will not, however, win by litigating. The courts are not merely on the side of our opponent, they are part of our opponent's arsenal. In upholding ObamaCare, Chief Justice John Roberts essentially said that himself:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices . . . .
In essence Roberts said, "You're on your own, suckers."
James Madison's Federalist 44 foresaw what just happened. In The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker, Richard Viguerie and I describe Madison's remedy:

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer . . . . In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives.
The remedy -- "election of more faithful representatives" -- began in the states in 2009, and burgeoned federally in 2010. This war to reclaim the Constitution will not be completed in 2012. It could take a generation. The war will be won only by boots on the ground. It will require running constitutional conservatives in the primaries and defeating those on the side of government. It's get-out-the-vote efforts, manning the polling stations so that elections aren't stolen, etc.

This war will require more of each of us than what we currently do. We're losing, but we've yet to invest the best of our energies, talent and intelligence.
The "alarm to the people," as Madison described it, has been sounding for some time now. Today we heard the siren of war.

Page Printed from: http://www.americanthinker.com/articles/../2012/06/war.html at June 28, 2012 - 01:22:09 PM CDT

Sleeping Giant?

The politics of the ObamaCare decision (updated with dissents)

Thomas Lifson

It looks to me that there are some sweet lemons for conservatives in the ObamaCare decision. Before we burn the chief justice in effigy, let's read the decision and think about the implications.
First of all, upholding ObamaCare is going to energize opposition to Obama, and the determination to elect a Congress that can repeal and replace it.  Just a day ago, the MSM was telling us it would be a plus for Obama if the act were held unconstitutional because it would take the issue off the table and weaken his opposition.  
On the other hand, as Rick Moran points out, "it gives Obama a big boost;  everyone likes a winner.
I have no doubt that the same media will now proclaim it is a big victory, a change in momentum, a blow to the right. I also expect Sudden New Respect for Chief Justice Roberts. I am  not going to hold that against him.
For one thing, the Court went nowhere near claiming the Commerce Clause means the feds can force us to do anything. The CJ and the majority (remember, by joining the majority he got to write the opinion) relied on the taxation power, by defining the mandate penalty as a tax. In other words, they seem to have in effect said, Yeah, the Democrats lied when they claimed they weren't raising taxes. Big deal! What do you expect?
Lyle at SCOTUS Blog agrees with me:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.

So in other words, the CJ protected us from the expanding the reach of the Commerce Clause, and let us know that we were lied to by the Democrats. And has handed us a big election issue.
Sometimes we win by losing. Call it the Zen of John Roberts.
Update with other opinions:
Mike Razar (corrected attributuion of this) is outraged by CJ Roberts:

You win some; you lose some. It is doubly painful to lose because of a betrayal by someone you admired and trusted. Caesar's dying words were "Et tu Brute".  Judas Roberts has broken faith with everyone who cares about Constitutional freedom. Given the opportunity to at least slow two centuries of the assumption of dictatorial power by the federal government, Roberts has chosen to side with the Jacobins. His name henceforth is inexorably linked with Benedict Arnold, the one-time hero of Saratoga who mysteriously changed sides when his loyalty was most needed by General Washington. Nathan Hale must be sobbing in his grave today.
Just as the betrayal by Arnold ultimately did no lasting harm, history will record that this act of cowardice sparked a renewed commitment of our modern Tea Party patriots to the founding principles of liberty. Perhaps our righteous indignation will go beyond defeating the liberty challenged politicians in Washington. They should amend the Constitution, to clearly limit the powers of the federal government to tax and regulate the everyday lives of individual citizens.
For now, every Tea Party patriot should sign a petition calling for the resignation of Mr. Roberts.

Sara Goss disagrees:

The Democrats will be hailing the SCOTUS decision to uphold Obamacare as a referendum on Obama's 1^st term in office. What they won't be mentioning is that Obamacare was upheld because Congress has the power to TAX. As has been said all along, if it looks like a tax and acts like a tax, then it's a tax. And, it's the largest tax ever imposed in a single shot on the American public.
Republicans should be dissecting this ruling and shouting from the roof tops that Obamacare was sold to Congress as relating to health care. When it was defended in court the main defense was that it was a tax. And, of course, Congress has the power to levy taxes. Going forward, we need to change all references from Obamacare to Obamatax. Because, as has been pointed out by SCOTUS, it's not about health care, it's about taxes.  

C. Edmund Wright thinks Lying is Constitutional; Common Sense is Not

While the pundits are still in shock and babbling about what just happened at the Supreme Court, we do know this much:
The Supreme Court has just ruled that our government can blatantly lie to us about their ability to tax -- as long as they end up calling it a tax in the end.  They can do that with the Court's blessing in fact.  Moreover, the government can now tax what we do or do not do as well as income.   As Andrew Napolitano said on Fox News, his libertarian fervor barely under control,  this is no doubt "the most bizarre tax in history" and allows our government to "tax us not on income, but on behavior."
As Mark Levin reiterated last night on his radio show, Obama Care "fundamentally changes the relationship between a citizen and his government."  Indeed.  We cease to be citizens.  We become line item expenses.
In a technical sense, this was an initial defeat for Obama Care and the individual mandate because the government's ability to compel commerce was struck down.  That's when John Roberts - ignoring the real lesson of Solomon's' threat to cut the baby in half - rushed in to save the mandate by saying that the government could accomplish the same thing by simply calling this a tax.
In other words, according to Roberts, not only are we line items, we are nothing more than schlubs and Roberts encourages our government to lie to us to make sure we don't get out of control.
In other words, Kathleen Sebelius will need a little more help from the IRS than they had originally thought.  Meanwhile, we all just suffered at least a short-term defeat to the very concept of limited government and liberty since Sebelius and the IRS as well as her army of bureaucrats in the Jurassic HHS Department just gained more of a foot hold in our lives.
This will no doubt set up a real showdown between the House and the White House over Obama Care between now and the election.  At this point, how this plays out in a political sense is unknown but there is one thing for sure:  the best chance of today's insane ruling working out well in the end is for the GOP members of the House and for Team Romney to come out hard and aggressive. 
This ruling is awful.  This bill is awful.  It will end America as we know it and therefore it must be defeated and soundly.  And it will likely be fought on the very nature of what a mandate is.

Karin McQuillan looks to the emotional impact:

Two conflicting emotions.  I feel a hollow pit in my stomach, a body blow.  We cannot rely on the Supreme Court to protect us from unlimited, tyrannical nanny state government reaching into every aspect of our lives.  I was hoping, and yes, expecting, the Court to roll back the expansion federal power by a historic reassertion of the Commerce Clause, to once again reserve power to the states, as our founders intended.  I hoped for big language about freedom of citizens from government intrustion.
Our trust and respect for Justice Roberts was misplaced.  He is not going to be a hero of Constitutional government.
Obamacare was not passed as a tax and wasn't passable as a tax.  For the Court to uphold it as a tax is to undercut our democratic process.  It is rewriting the law to make it viable.
Next emotion.  Steely determination.  A landslide victory has just become possible.  The majority of the American people - who loathe socialized medicine - are going to rise up and vote.  They will vote the Obama-Reid-Pelosi European socialist Democrat Party out of office.  This election will be hard fought but it will not be close.
Obama's disastrous attack on our economy through profligate spending and a ban on using our energy resources was not going over well with ordinary voters.  Now he has the millstone of Obamacare around his neck.  Headlines may say he was vindicated, but they will not motivated discouraged, unemployed young whites, single women, Hispanics or blacks to rush out and vote for their guy, all happy that Obamacare will be around. 
It will motivate the rest of us. 

Richard Baehr sees gloom:

I am not as optimistic. I think this could dispirit our side and boost enthusiasm for the dems. Intrade betters feel the same way. Obama odds of winning up a few points already. Last two weeks have been bad news in general for purr side. We are being routed among Hispanics due to new immigration policy. Obama has over 40 point lead nationwide. We will not win Nevada or colorado with these numbers and maybe not florida either. No chance of romney winning without florida. I think today is a disaster. Roberts is gutless. I thought Kennedy would be the squishy one.

Steve McCann sees cowardice, but also sees the "sleeping giant" awakening:
Cowardice. That is the only way to describe the Supreme Court decision to recast the ObamaCare mandate as a "tax." Something the Congress and Obama went out of their way to avoid when debating and passing the bill. Something they explicitly said was not a "tax" on repeated occasions.
The Court appeared determined to find a way to avoid declaring the mandate unconstitutional and thus having to confront the issue of severability which would have forced them to declare the entire Bill unconstitutional. Reading something into the law that was not there is the epitome of judicial activism and a historic black mark on the independence of the Judiciary. Acting as impartial jurors was not the basis of this process, rather it was to avoid, in their minds, getting into a political fray.
All they have done is exacerbate the political process and force the American people to finally confront the fact that they, on November 6th will have the final decision. Conservatives, libertarian, conservative Democrats and Republicans now have had the gauntlet thrown down and Obama and the left, while in celebratory mood now, will face a more united and determined foe.
As Admiral Yamamoto said upon hearing of the successful attack on Pearl Harbor: "I fear all we have done is wake up a sleeping giant and filled him with a terrible resolve."

Holder 1995: We Must 'Brainwash' People on Guns

by Joel B. Pollak

Breitbart.com has uncovered video from 1995 of then-U.S. Attorney Eric Holder announcing a public campaign to "really brainwash people into thinking about guns in a vastly different way."

Holder was addressing the Woman's National Democratic Club. In his remarks, broadcast by CSPAN 2, he explained that he intended to use anti-smoking campaigns as his model to "change the hearts and minds of people in Washington, DC" about guns.
"What we need to do is change the way in which people think about guns, especially young people, and make it something that's not cool, that it's not acceptable, it's not hip to carry a gun anymore, in the way in which we changed our attitudes about cigarettes."
Holder added that he had asked advertising agencies in the nation's capital to assist by making anti-gun ads rather than commercials "that make me buy things that I don't really need." He had also approached local newspapers and television stations, he said, asking them to devote prime space and time, respectively, to his anti-gun campaign.
Local political leaders and celebrities, Holder said, including Mayor Marion Barry and Jesse Jackson, had been asked to help. In addition, he reported, he had asked the local school board to make the anti-gun message a part of "every day, every school, and every level."
Despite strict gun control efforts, Washington, DC was and remains one of the nation's most dangerous cities for gun violence, though crime has abated somewhat since the 1990s.
Holder went on to become Deputy Attorney General in the Clinton administration, and currently serves as Attorney General in the Obama Administration.
The video of Holder's remarks was uncovered by Breitbart.com contributor Charles C. Johnson.

http://www.breitbart.com/Big-Government/2012/03/18/Holder-Fight-Guns-Like-Cigarettes

Did Justice Roberts Trade Votes with Justice Kennedy? Let us hope so...

By Jason Kissner

Did Justice Roberts trade votes with Justice Kennedy in the Arizona decision handed down Monday?  I certainly hope so, for he would have struck a blow for constitutional conservatism. I will explain:
Many Court observers have expressed surprise at Chief Justice Roberts joining the majority opinion of Justice Anthony Kennedy, which struck down three of four provisions at issue with Arizona's S.B. 1070 and left the fourth on life support in terms of jurisprudence, and all but dead in terms of practice.
As Justice Scalia noted in a dissent that was animated even by Scalia standards, the Supreme Court's decision in Arizona et al. v. United States unquestionably dealt a serious blow to state sovereignty.  This has many conservatives asking how a purportedly conservative justice could have sided, particularly in such an important case, not just with Justice Kennedy, but with the Court's left wing.
Ben Shapiro at Breitbart speculates:

... it is entirely possible that Roberts joined with the liberal wing on this ruling in order to provide cover for the Obamacare decision to be handed down later this week. That decision will likely be 5-4, with Kennedy as the deciding vote -- and it has not been unheard-of at the Supreme Court level for a certain amount of vote-swapping to occur.

Noah Feldman at Harvard Law School likewise contemplates the possibility that a Roberts/Kennedy swap may have occurred. 
These are intriguing speculations.  So intriguing, in fact, that it may be worthwhile to discuss in brief detail compelling reasons that seem to have been overlooked by both Shapiro and Feldman why one should accept this as precisely what occurred in Arizona vs. United States.
Mr. Shapiro mentions providing cover for ObamaCare as possibly underlying a putative vote swap.  Many conservatives, in turn, have expressed outrage at the mere prospect that a justice who considers himself conservative would do such a thing.
But Justice Roberts could have made a reasonable case that doing so was not only consistent with constitutional conservatism, but required.  The starting point is to recognize that Arizona vs. United States was a "preemption case."  Preemption cases are unusual in that they represent a particular type of fusion between constitutional interpretation and statutory interpretation. 
As is true of many preemption cases, the emphasis was on statutory interpretation, not constitutional interpretation.  The resolution of the legal issues in the case depended heavily on comparing the statutory language of relevant federal law with that of the Arizona law, as well as comparing the policy objectives of each set of legal provisions.
Preemption cases almost invariably involve making specific and sometimes technical comparisons with respect to the area or areas of law in dispute in the case before the Court, in order to determine whether federal law supplants state law.
These observations lead to the idea that Justice Roberts may have figured that by agreeing with Kennedy, he was by no means committing himself to any particular outcome with respect to future preemption cases dealing with other areas of law. 
Furthermore, he may have reasoned (and Mr. Feldman did observe this) that siding with the rest of the conservative bloc would have resulted in a 4-4 tie that would function to affirm the Ninth Circuit's judgment that all four S.B. 1070 provisions must be struck. 
Justice Roberts could have continued to reason that since the Supreme Court would then not have spoken on the issue, future cases presenting substantially similar issues would likely arrive at a bench, including Justice Kagan, meaning Roberts would then be stuck with a 5-4 loss and an outcome the same as United States vs. Arizona in terms of area-specific constitutional doctrine.  
Moreover -- and this could have been pivotal for Roberts if vote-swapping with Kennedy really did take place -- a 4-4 decision would look terrible enough on its own, but how much more mutant would it look if combined with a 5-4 elimination of ObamaCare?
That is, the "cover" spoken of by Mr. Shapiro may well have comprehended a desire of Justice Roberts that the Court's perceived judicial integrity be maintained.  The chief justice of the Supreme Court of the United States is the principal custodian of the Court's institutional interests.  A vote swap would have functioned to do more than merely secure Justice Kennedy's vote in the ObamaCare case; it would have done so in a way likely to enhance the perceived public legitimacy of two of the most important and hotly contested cases of our lifetimes.
Just look at how the administration and their far-left MSM associates have received the decision.  What a tremendous victory for massive federal power!  Nope, no "judicial activism" there, is there?
Given the outcome in Arizona vs. United States, then, an administration loss in the ObamaCare case would in principle be much harder to characterize as mere "activist ideology."  While many leftists are bereft of principle, some do retain the semblance of it.
It is worth thinking too in this connection that of the two cases, the ObamaCare case is almost certainly the more important in terms of the future of constitutional conservatism.  ObamaCare implicates a federal takeover of one-sixth of the economy and much else besides.  Also, the Arizona outcome would appear to be much more amenable than a negative ObamaCare outcome to an alternative political resolution from practical as well as policy vantage points. 
If one thinks that Justice Kennedy was leaning against the individual mandate for reasons having nothing to do with Justice Roberts (and many are aware that there are good reasons for thinking this), then I hope that Chief Justice Roberts followed the logic of vote-trading in order to eliminate ObamaCare in its entirety, thereby enhancing the welfare of the Court and of the American people.  That would have been quite a blow for constitutional conservatism, would it not -- and all at no cost whatsoever to constitutional doctrine!   
Jason Kissner, Ph.D., J.D. is associate professor of criminology at California State University, Fresno.  You can e-mail him at crimprof2010@hotmail.com.

Issa escalates: Accuses Obama of involvement in Fast and Furious

Rick Moran

Rep. Darrell Issa threw down the gauntlet to President Obama in a letter to the president that accuses him of being involved in the Fast and Furious operation.

The Hill:

Issa took issue with Obama's assertion of executive privilege over a cache of documents at the Department of Justice - including a February 2011 letter later withdrawn by the agency - that Issa believes includes information on Holder's role in Fast and Furious.
"Either you or your most senior advisers were involved in managing Operation Fast and Furious and the fallout from it, including the false Feb. 4, 2011 letter provided by the attorney general to the committee," Issa wrote to Obama. "Or, you are asserting a presidential power that you know to be unjustified solely for the purpose of further obstructing a congressional investigation."
White House spokesman Eric Schultz defended Obama's assertion of executive privilege, saying that the move is legal and has long been supported by courts even if the president is not directly involved with the documents in question.
"Our position is consistent with executive-branch legal precedent for the past three decades spanning administrations of both parties, and dating back to President Reagan's Department of Justice," said Schultz in a statement.
"The courts have routinely considered deliberative process privilege claims and affirmed the right of the executive branch to invoke the privilege even when White House documents are not involved."
Issa on Sunday acknowledged in an interview with Fox host Chris Wallace that he has no evidence that would suggest a White House cover-up of the gun-tracking operation.
The House has scheduled a vote on the contempt charge for Thursday, the same day the Supreme Court is scheduled to deliver its decision on Obama's healthcare law. That virtually ensures the Holder vote will get less media attention, something that might be fine with many Republicans who want to focus the political debate on the economy. Conservatives within the GOP have been pressing for the action against Holder.

You can bet he has their attention now.
The February 4 letter is the key, of course. It contains the statement by DoJ that they did everything in their power to prevent gunwalking, despite that being demonstrably untrue. When Justice withdrew the letter later with little explanation, Issa began to concentrate on the coverup of DoJ -- and possibly White House -- knowledge of the affair.
It's always the cover up that gets them.

Mandatory Voting? No, just loser 'laments'...

Voter Apathy Isn’t a Crime

By Jonah Goldberg

It’s a sure sign someone is losing when he demands that the rules be changed.

That might explain the renewed interest in forcing people to vote against their will. Peter Orszag, President Obama’s former budget director and now a vice chairman at Citigroup, recently wrote a column for Bloomberg View arguing for making voting mandatory.
He’s not alone. Icons of the Beltway establishment Norman Ornstein and Thomas Mann also favor the idea. As does William Galston, a former advisor to President Clinton. (Mann and Galston are scholars at the liberal Brookings Institution; Ornstein is a colleague of mine at the American Enterprise Institute.)
While I have great respect for Ornstein, Mann, and Galston — I’m undecided about Orszag — I find the idea absurd, cynical, and repugnant.
Let’s start with the repugnant part.
One of the chief benefits of coerced voting, according to Orszag, is that it increases participation. Well, yes, and kidnapping drunks in pubs increased the ranks of the British navy, but it didn’t turn the conscripted sailors into patriots.
I think everyone can agree that civic virtue depends on civic participation. Well, any reasonable understanding of civic participation has to include the idea of voluntarism. If I force you to do the right thing against your will, you don’t get credit for doing the right thing.
Let’s move on to the absurdity. Ornstein and Mann suggest fining people, say $15, if they don’t vote and using the proceeds to set up a lottery to bribe reluctant voters. If the old line that lotteries are taxes on stupid people is correct, then the upshot of this proposal is that the cure to what ails democracy is an influx of large numbers of stupid voters.
Even if all the people who play the lottery aren’t stupid (I’ve bought my share of tickets), there’s still a problem. Do we really think democracy will be improved by enlisting the opinions of Americans who otherwise wouldn’t bother if there wasn’t a jackpot in the offing?
This brings us to the cynicism of it all. While many political scientists and economists hold that mandatory voting probably wouldn’t change electoral outcomes, many people still believe that compelling the poor, the uneducated, and the politically unengaged would be a boon to Democrats (what that says about Democrats is for others to judge). I wonder: Would the winner of the ballot lottery have to show a photo ID?
It’s hard to see how Orszag is interested in anything other than changing the rules for his side’s benefit. As Reason magazine’s Tim Cavanaugh notes, just last year Orszag argued for taking some policymaking out of the hands of voters and empowering technocrats — like him — to run the country. “We need to counter the gridlock of our political institutions,” Orszag explained, “by making them a bit less democratic.”
Ornstein and Mann, whose new book blames Republicans for all that’s wrong in Washington, make a slightly different argument. They claim that coerced voting would revive the political center by reducing the influence of activists and ideologues.
Ultimately, this is a more sophisticated way of making the same argument. They do not like the way conservatives have been winning battles in Washington. Forcing people to vote, they hope, would put an end to that.
And it’s worth noting that we are talking about making nonvoting a crime. If a citizen refuses to vote or pay the fine — and countless would — he would be breaking the law. How far would the government go to compel these citizens to pay up or comply? This is how the “experts” would make democracy healthier?
It’s an unfashionable thing to say, but if anything, voting should be harder, not easier. Scarcity creates value. Sand is cheap because there’s so much of it. Gold is valuable because it is rare. If you want people to value their vote, we should make it more valuable.
Personally, I wouldn’t mind tying eligibility to vote to passing the same citizenship test we require of immigrants. We might get fewer voters, but the voters would be far more likely to appreciate the solemnity of their ballots.
But such proposals just elicit rage from people who love democracy — albeit only when they’re winning.
— Jonah Goldberg is editor-at-large of National Review Online, a visiting fellow at the American Enterprise Institute, and the author of The Tyranny of Clichés. You can write to him by e-mail at JonahsColumn@aol.com, or via Twitter @JonahNRO. © 2012 Tribune Media Services, Inc.

Equal ‘Access’ to Success?

By Thomas Sowell

Politicians seem to have a special fondness for words that have two very different meanings, so we are likely to hear a lot of these kinds of words this election year.

“Access” is one of those words. Politicians seem to be forever coming to the rescue of people who have been denied “access” to credit, college, or whatever.
But what does that mean, concretely?
It could mean that some external force is blocking you from whatever your goal might be. Or it could mean that you just don’t have whatever it takes to reach that goal.
To take a personal example, Michael Jordan became a basketball star — and a very rich man. I did neither. Was that because I was denied “access” to professional basketball?
Anyone who saw me as a teenager trying to play basketball could tell you that I was lucky to hit the backboard, much less the basket.
By the first definition, I had as much “access” to the NBA as Michael Jordan had. Nobody was blocking me. They didn’t have to block, because I was not going to make the basket — or the NBA — anyway.
Making a distinction between external and internal reasons for failing to reach one’s goal would clarify the meaning of the word “access.” But clarification would destroy the political usefulness of the word, along with the government programs that this word is used to justify.
For years, politicians and the media went ballistic over the fact that different groups had different approval rates for mortgage loans. This was supposed to show that some racial groups were denied “access” to mortgage loans, and especially access to the most desired loans with the lowest interest rates.
No one even asked the question: Denied access by which definition of “access”?
Political crusaders don’t pause to define words. Their shrill rhetoric suggested that external barriers were the problem. And that meant government intervention was the solution, to smite the wicked and deliver “social justice” (another undefined term).
When statistics showed that blacks were turned down for conventional mortgage loans at twice the rate of whites, that was the clincher for those saying that “access” was the problem and that racial discrimination was the reason. Since this fit the existing preconceptions in many quarters, what more could you want?
Other statistics, however, showed that whites were turned down for conventional mortgage loans at nearly double the rate for Asian Americans. By the very same reasoning, that would suggest that whites were being racially discriminated against by banks that were mostly run by whites.
But this unlikely conclusion never surfaced, because the second set of statistics seldom saw the light of day in the mainstream media, even though both sets of statistics were available from the same sources.
To publish the second set of statistics would undermine the whole moral melodrama in the media, and the political crusade based on it.
Statistics on the average credit ratings of people in different racial groups likewise seldom saw the light of day. The average credit ratings of whites were higher than the average credit ratings of blacks, and the average credit ratings of Asian Americans were higher than the average credit ratings of whites.
But to lay all these facts before the public and say, “We report, you decide” might well result in the public’s deciding that banks and other financial institutions prefer lending to individuals who are more likely to pay them back.
Also lost in media stories was the fact that many, if not most, of the financial officials who actually made loan-approval decisions never laid eyes on the people who applied, but based their decisions on the paperwork sent by those who dealt directly with the applicants.
Equal “access” does not automatically lead to equal outcomes, either in lending institutions or in basketball, or anywhere else. But words like “access” have led to much political success and much economic disaster, the housing market being just one example.
— Thomas Sowell is a senior fellow at the Hoover Institution. © 2012 Creators Syndicate, Inc.

Why the Obamacare Ruling Matters

By Michael Tanner

As we eagerly await the Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act, a.k.a. Obamacare, expected shortly after 10 a.m. Thursday morning, much of the political Left remains mystified by the health-care law’s continued unpopularity.

According to an Associated Press/GfK poll released last week, 47 percent of Americans oppose the health-care law, while just 33 percent support it. Similarly, a Rasmussen presidential-election poll released just this week found that 54 percent of likely voters want the law repealed. And even more devastating, a New York Times/CBS News poll, which traditionally skews Democratic, found that fully two-thirds of Americans wanted either the individual mandate or the entire law to be found unconstitutional.
In the face of this ongoing opposition, the media has trotted out the usual excuses. First, the public doesn’t understand all the good things the health-care bill will supposedly do for them. As Chris Cillizza said on MSNBC, “People don’t know what they want.” They point to surveys showing that Americans express confusion about what the law would or would not do. Other surveys show that some benefits of the law, such as allowing children to stay on their parents’ policy until age 26 or guaranteeing coverage for individuals with preexisting conditions, are quite popular, even if the overall bill is not.
Thus, the Left continues to cling to the idea that the health-care law will eventually become popular once the public figures it all out. True, they originally thought that the bill would “become more popular after passage than it was before passage,” as Ezra Klein suggested. Then, they thought that it would become popular once some of the reforms took effect. “I think that health care, over time, is going to become more popular,” David Axelrod told us. Now, bizarrely, Washington Post columnist E. J. Dionne claims that the bill will actually become more popular if the Court strikes it down.
Or maybe the public isn’t stupid; rather, they’ve just been brainwashed by a barrage of anti-Obamacare ads. Last week, the New York Times rolled out a front-page story highlighting a study that, in purchases of television advertising, opponents of the health-care law had outspent supporters three-to-one, $235 million to $70 million. That gap has shrunk in the last year, though: Since July 1, 2011, opponents spent roughly $27 million on television ads, compared with $12 million by supporters. Moreover, the study only included spending up to March of this year, and therefore does not include a new $20 million contract that HHS signed with a public-relations firm in May.
Of course, focusing on just television advertising ignores the many other avenues that supporters have used to sell their message, such as HHS mailings to seniors. There is also the virtually unending stream of pro-Obamacare stories in the mainstream media. And, there was the president himself, who has given at least 144 speeches, talks, or press conferences devoted to the bill.
This is roughly the same argument that liberals fell back on after they failed to recall Wisconsin governor Scott Walker. Their message didn’t lose on the merits; it was defeated unfairly by evil corporate interests who pulled the wool over voters’ eyes. (Ignore the fact that big corporate interests such as the pharmaceutical industry were recruited by the Obama administration to support the health-care bill.) If the Court tosses out all or part of the health-care law, expect to hear the same litany of villains: Citizens United, the Koch brothers, Karl Rove . . .
But the American people aren’t really dumb. And they haven’t been deluded by 30-second television ads.
Of course, Americans respond positively to parts of the law that appear to give them more benefits or that help the disadvantaged, especially when those provisions are presented to them as nearly cost-free. But Americans are also aware of the bill’s many failings: It increases federal spending, taxes, and debt. It adds new burdens to struggling businesses, making it harder for them to grow and hire new workers. It drives up the cost of health insurance, especially for the young and healthy, while putting in place structures that will almost inevitably lead to the rationing of care.
The average American adds up the costs and benefits and decides that, on the whole, they don’t want the law. It’s not bad marketing; it’s bad law.
But there is a much deeper reason why so many Americans reject Obamacare. They see it as an enormous expansion of federal power, contrary to the Constitution, American historical tradition, and their own innate dislike of big government. There is a reason why the individual mandate is the most unpopular aspect of the law.
If the Court upholds the government’s power to force you to buy health insurance, is there any limit to this power? Is there anything the government can’t require you to do? That is why the analogy of a “broccoli mandate,” while pooh-poohed by liberal legal experts, struck such a chord. It’s not that the public expects the broccoli police to appear on their doorstep anytime soon, but they understand that unrestrained and unlimited government power is a thing to be feared. Indeed, Gallup has found that nearly two-thirds of Americans believe that big government is the biggest threat to the future of this country, far more than either big business (26 percent) or big labor (8 percent).
That’s a dimension of the American character missed by those on the left who see government as nothing more than a benevolent force that goes about dispensing goodies and righting wrongs. The essence of the Obama administration is about the accumulation of government power, first by the federal government itself, and secondarily by the president himself. This desire for power explains not only the president’s policies but also his distaste for the democratic process, particularly when it stands in the way of his doing what he thinks must be done.
In a way, the health-care bill is typical of the entire Obama presidency. It asserts the power of government over individuals, and the power of the federal government over the states.
That is why Thursday’s Supreme Court decision is about far more than just one bad health-care law. If the bill — or at least the individual mandate — is struck down, the Court will have said that the power of government over our lives is not unlimited. There are some lines that government cannot cross, even when well-intentioned.
That would be a decision that the American people will cheer.
— Michael Tanner is a senior fellow at the Cato Institute and author of Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution.

Obama, Story-Teller

By Victor Davis Hanson

A sign of an undisciplined mind is serial lapses into self-contradiction, or blurting out a thought only to refute it entirely on a later occasion. For a president to do that is to erode public confidence and eventually render all his public statements irrelevant. That is now unfortunately the case with Barack Obama, who has established a muddled record of confused and contradictory declarations.

Last week, the president invoked executive privilege to prevent the release of administration documents related to the Fast and Furious operation. All presidents on occasion use that tactic, but rarely after they have put themselves on record, as did Senator Obama just five years ago, damning the practice as a de facto admission of wrongdoing. Does President Obama remember his earlier denunciation — or why he thought a special prosecutor was necessary to look into the Scooter Libby case, but not the far greater mess surrounding Eric Holder?
About the same time, President Obama offered de facto amnesty for an estimated 800,000 to 1 million illegal aliens. Aside from his circumvention of Congress and his casual attitude toward his own constitutional duty to enforce the laws as they are written, Obama had on two earlier occasions stated that he not only would not grant such blanket exemptions from the law, but also legally could not. That was then, this is now — the middle of a reelection campaign?
Candidate Obama derided George W. Bush as “unpatriotic” for borrowing $4 trillion over eight years; what term might President Obama use to characterize his own record of borrowing $5 trillion in less than four years? “Extremely unpatriotic”? In his first year in office, Obama announced that he would deserve just a single term if the economy had not improved after his agenda was reified. What then is he to say to that earlier Obama when 8 percent unemployment is now in its 41st consecutive month, GDP growth is flat, and we continue to borrow $1 trillion per year?
As a candidate, Obama promised to play by the rules of public campaign financing, only to renounce that pledge when he was well on his way to raising $1 billion. Obama did not just promise to shut down Guantanamo and cease renditions, preventive detention, and military tribunals; he also denounced them in such venomous terms that his later embrace — or indeed expansion — of all these protocols was not so much hypocritical as surreal.
President Obama does not like filibustering in the Senate; Senator Obama apparently felt differently when he was in the minority and tried to stop a vote on the confirmation of a Supreme Court justice. The list of the Obama about-faces and obfuscations grows weekly — the revolving door, lobbyists in the White House, the new transparency, opposition to super PACs, attitudes toward Israel, huge savings from Obamacare. And we are at a point now where no one can verify anything from the president’s past, given that his own memoir was largely mythographic — details about his family, friends, and girlfriends made up to enhance his preferred narrative of racial oppression. If a writer will fudge on the very details of his own dying mother’s seeking to obtain health care, then he will fudge on almost anything. And if the Birthers were unhinged for suggesting that Obama was born in Kenya, what are we to make of Obama himself allowing just that untruth to appear on his literary agent’s biography of him for over a decade?
What explains these weird disconnects? There are many contributory factors. First, Obama is a quintessential postmodernist, who believes that there is no abstract “truth,” only floating narratives that gain credibility by their aims — false if for ignoble reasons, true if spoken for egalitarian purposes. Obama would argue that his literary fictions were not actually fictions given that they served the cause of exposing racial bias — it is the intent that matters, not the details. The larger truth is that Barack Obama suffered angst because of his biracial identity; how, when, and where all that happened is immaterial.
Obama once really did lament that he could not legally offer amnesty, only to do just that; similarly, the use of executive privilege for a President Bush is not the same thing as for a President Obama. A statement can be judged true or false only by its ultimate objective — and in Obama’s case all his untruths must be true because they were intended to serve a progressive end.
Second, Obama understands that he is a symbolic as much as a real president. Name a controversy — Fast and Furious, the Secret Service scandal, the GSA mess, the serial leaking of key national-security secrets — and he assumes that critics will eventually be tarred with the brush of racial bias for daring to bring that scandal up and thereby help derail the nation’s first African-American president. Similarly, the fact that Obama is part African, has adopted the patois of the inner-city black community, and has allied himself with the identity-driven grievance industry is felt to offer exemption from charges of hypocrisy. So one can both damn fat-cats and endlessly play golf with them. The 1 percenters are culpable, but not so culpable that one would stay away from Martha’s Vineyard or Vail. In Obama’s mind, his minority status and left-wing politics trump any appearance of disingenuousness; he can slur the wealthy in the abstract while courting them and living like them in the concrete. And in our topsy-turvy world, to cite such hypocrisy is racist, whereas using race to seek exemption is not. We see how identity politics collides with truth all the time in America. In the Tawana Brawley case, the Duke lacrosse scandal, and the details surrounding the Trayvon Martin shooting, the point was not necessarily distinguishing fact from fiction, but being careful not to lose sight of the larger quest for racial justice.
Third, Barack Obama was as senator and remains as president a casual ad hoc thinker, an activist rather than a learned and informed leader. He assumes that how he speaks matters rather than what he says, as if months later when critics look at his contradictory transcripts they will remember only how he enthused the crowd by dropping his g’s or inserting a melodic “hope and change” or “make no mistake about it” fillip. At any given moment Obama can declare that he will cut the deficit by half by the end of his first term, that the private sector is doing fine, or that his administration has been a proponent of more gas and oil drilling. Emotion and enthusiasm are for him; detail, consistency, and accuracy are for others.
The media play an unfortunate role as well. Obama has never developed the normal politician’s fear of journalists, who customarily try to dry-gulch a politician by quoting back statements at odds with his record. Instead, Obama assumes that in a press conference or an interview, no one will remind him that he once criticized the use of executive privilege, opposed gay marriage, ruled out de facto amnesty by fiat, or denounced the revolving door. Obama rightly sensed that the more he damned Guantanamo as a candidate, the more his base would rally to his cause — and even more would they keep mum when as president he chose to keep the detention center open. Journalists simply empowered his habit of speaking off the top of his head by a conspiracy of silence. Deep down, Obama supposes that if he says something entirely opposite from what he once said, or something so preposterous that it cannot possibly be true, or calls the Falkland Islands the Maldives, no journalist would dare to press him on the disconnect — given the possible harm to the liberal agenda of our first African-American president.
But after nearly four years, the game is about up. If the president lectures the Europeans with another “make no mistake about it,” they will assume there are lots of mistakes about it. If he says “in point of fact” to Vladimir Putin, then Putin can be sure there are no facts at all. If Obama addresses the American people with “let me be perfectly clear,” then they assume he most certainly will be anything but transparent and concise. And if Obama compares a current event to one in his own past, then we can be sure that the earlier event never took place.
Obama’s critics may not be judicious or even quite accurate in calling him a liar, since he does not consciously and by deliberation craft mistruth. Rather, he simply is a story-teller, a novelist, a fabulist who says nice, interesting things for his own benefit, and on occasion thunders out promises in mellifluous cadences, without any worry whether they are true or false, or whether they confirm or reject what he said a bit earlier. What Barack Obama wants to be true, he says to be true; and we lesser folk can sweat the details when it is usually not.
— NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author most recently of The End of Sparta, a novel about ancient freedom.