Oh Where, Oh Where Has Our Chief Justice Gone???

COLLEGIALITY VS. CONSTITUTIONALISM

by jtx, ©2012

(Jul. 2, 2012) — Oh where, oh where can he be…With his ears cut short and his tail cut long, Oh where, oh where can he be?

Borrowing from the old children’s nursery rhyme and song above is probably not a bad thing since it is neither a “penalty” nor a “tax.”  The man in question may have other novel interpretations, though, as we have recently seen.

 It is pretty well-known that the Chief Justice Roberts is extraordinarily concerned about the place “his” court will occupy in the pantheon of “Great Courts” and “Great Chief Justices” and he has even opined that he hopes and thinks that “his” court will be at least right up there with the Marshall Court with its CJ known as the Great Chief Justice.   Perhaps that is why Roberts is striving strenuously in his latest efforts to become a super-Federalist as was Marshall.  That is the only intent that seems to explain his quaint, tortured, and (one must say) unconstitutional logic in the recent healthcare act decision. unconstitutional???  Yes, and very much so, as we’ll discover a bit later.

Oh, and yes, CJ Roberts also wants his court to be “collegial” (whatever that might mean) as was Marshall’s and perhaps these latest two or three decisions where El Jefe has come down on the liberal side of the fence and clearly against not only liberty but also the Constitution and even common sense has made some observers wonder if his epileptic seizure in 2007 (or perhaps the medications for the affliction) when he was rushed from his summer cottage in Maine to a hospital might have affected his reasoning in the intervening cases though it seems unlikely.  Let’s say it had no effect and try to see what happened to “Our Guy”!!

Looking only at the decisions in the AZ, Stolen Valor, and Care cases confirms the wisdom of the nursery rhyme above.  Roberts, who many had viewed as a somewhat (at least) conservative view on the Court, seems to have taken leave of his senses and even run away.  In the AZ case his opinions allowed the elimination of State sovereignty with some VERY questionable reasoning and might be seen as a shot across the bow of other States who had the temerity to think the 10^th Amendment actually meant something or that having state laws to implement federal legislation within State boundaries was somehow not verboten.  The Stolen Valor case allowed him to say “it’s OK to lie” about stuff like being a Medal of Honor winner since most of them are dead anyway and probably won’t object and, hey, lying is OK as the liberals do it routinely – look at Obama, Reid,  Pelosi, etc.  The real coup de gras to his historical persona, though, is the “reasoning” in the ObamaCare (ZeroCare) case.  Let’s briefly see what we can observe.

Starting from the premise of being “collegial” he would no doubt not wish to alienate the four very liberal justices.  One of them who actually detests the Constitution and has said so publicly in other countries advising them to “look elsewhere” for a model Constitution of their own as ours was outdated and, basically, a piece of antiquated folderol.  One of the others had helped grease the skids of the ZeroCare legislation through Congress and yet refused to recuse herself.   Strange and surely in contravention to the precepts involved.  The other two, herein called “wise and otherwise,” to assuage hurt feelings must needs be have some assurance that their CJ loves them by siding with their opinions.

Perhaps this was his idea of a trade of sorts where if they would write to preclude the use of the Commerce Clause all the time and rule it invalid, he would “find” the ephemeral “tax” which was never there and all five of them could then proclaim “victory” since the bill would be passed as “law” – exceedingly strong, stinging dissents notwithstanding.   Let’s be generous and say that in the CJ’s mind’s eye this was a victory of removing the much-misused Commerce Clause that the libs have used as a sandbox to play havoc with rational litigation for generations.  He must surely have figured this would make those of a Constitutional bent proud of him for putting a stake through the heart of that clause and this would explain the “ears cut short” in the nursery rhyme – he completely clipped the Commerce Clause short or so he thought.  But what about the “tail cut long” part???  Patience, we’re coming to that …

When is a tax not a tax???  When it’s a penalty, obviously, and being collegial this is what the CJ believed he “discovered” relying on some exceedingly strained logic from some out-of-court liberal legalese dragooned for the very thoughts on this matter.  We’ll ignore the part that this “tax” bill didn’t really originate in the House.  Problem is the good CJ has probably been too busy with his Federalism-for-history quest to have read the US Constitution or the XVI Amendment.  Surely earlier in his legal career Roberts encountered the fact that there are very few types of taxes that are constitutionally valid; basically direct taxes/1/  (with XVI Amendment restrictions) and indirect taxes – germane to this discussion are the excise and sales taxes (indirect) which have been used for many generations and are clearly constitutional; and also the quaint bird of an “income tax” (direct) allowed under the 16^th Amendment by convoluted reasoning similar to that indulged in the ZeroCare act. /2/

Certainly the ZeroCare “tax” is not an excise tax and in reading the 16^th Amendment (and assuming the amendment to be constitutional) one quickly discovers it to grant Congress the power to “collect taxes on incomes, from whatever source derived.” The Supreme Court has defined “derived” income to mean “undeniable accessions to wealth.” Here, the mere refusal to purchase a product is not any kind of “income” or accession of wealth.  This means that the “ZeroCare Tax” discovered by rousing Federalist-wannabe logic neither walks like a duck nor talks like a duck and is, therefore, not only not a duck but it is also not a constitutional tax at all but merely an illegal assertion of governmental power … sort of a “give me your money when I say ‘cause I need it” play.  It is a direct tax on individuals no matter the convoluted reasoning.

The implications here are chilling in that the power by Congress to make laws on any subject, impose a fine for noncompliance, have the IRS enforce the fine, and then claim that the entire misbegotten structure is part of the tax power.   No one with a serious reading of the Constitution would believe the Founders had any such thing in mind!!!  The result would gut Article I of the Constitution, which grants Congress only 18 specific powers – and does not grant a general power to legislate on everything in the manner described.  If one is an uber-progressive/socialist/communist, what’s not to like here (as Footnote /1/ shows)???  Other than that … not so great!!!  It rips the Constitution apart very completely and thoroughly.  Perhaps even more so than having a man who has never shown himself to be constitutionally eligible to hold the office he now occupies.

It is now eminently clear that the reason SCOTUS refused to hear the very well-pleaded Kerchner et al v Obama & Congress case in 2010 was that they could not muster a 4^th vote “in conference” for such a hearing when there were 3 clearly who would vote for such a hearing: Scalia, Thomas, and Alito.  It now is apparent that Roberts was merely being “collegial” by not being the 4^th vote to take up the case (dealing with Obama’s eligibility and filed while the man was still president-elect but before his swearing-in).

Perhaps CJ Roberts should take a deep breath, back up and rescind in at least this last case his decision, “collegiality” notwithstanding.  True, it will reduce “his tail cut long” exercise of declaring a tax that is not a tax, but that’s a good thing in the instant circumstance.  If he does not, he runs into the certainty of being known NOT as the “Great Justice” on a par with John Marshall, but rather as the last Chief Justice of the Supreme Court and the one who destroyed the Constitutional Republic.  We should all keep in mind here that Chief Justice John Marshall is the guy who said “the power to tax is the power to destroy” … and that’s exactly what the ZeroCare decision does.

Footnotes:

/1/

18th century comment:

“The power of direct taxation applies to every individual … it cannot be evaded like the objects of imposts or excise, and will be paid, because all that a man hath will he give for his head. This tax is so congenial to the nature of despotism, that it has ever been a favorite under such governments. …

The power of direct taxation will further apply to every individual … however oppressive, the people will have but this alternative, either to pay the tax, or let their property be taken for all resistance will be vain.”

The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to their constituents.

/2/

Before the Lincoln administration there was never an “income tax” since it was known to be unconstitutional as a direct tax.  As a measure to ostensibly help pay for the costs of the Was Between The States, an income tax bill was passed and put into effect anyway.  It was most likely unconstitutional but there were other more overriding concerns at the time. The actual form for reporting this tax from the 1860s still exists within the IRS archives where I obtained a copy a few years ago.  After several years of desultory collections the income tax was ruled unconstitutional by the courts and as I recall was so ruled up until the time of the Taft administration which made the astoundingly bad political deal to place the 16^th Amendment up for a vote (they were sure it would not pass as an amendment or if so that it would not be ratified).  And this, kiddies, is how a Republican administration hugely helped give us the 16^th Amendment which finally allowed levying of certain direct taxes on incomes – heretofore unconstitutional and so voted more than once by the Supreme Court.