Why not just cut open a goat and be done with it?
In ancient Rome a special kind of priest called a haruspex would read the entrails of sheep to divine the will of the gods the health of the growing season or whatever else was weighing on the minds of men. Because animal guts dont in fact impart that much information about say next years wheat harvest the haruspices (called auspices in Latin -- from which we get the English word) could pretty much make it up as they went along. The same went for the auguries (priests who studied the flight of birds). Ultimately the auspices and auguries made their decisions based upon the whims vicissitudes and demands of politics in one form or another. If the rulers were happy with the result they didnt much care what the guts actually said.
Fast-forward to chief haruspex John Roberts.
In the majority opinion written by Roberts the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (aka ObamaCare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that its constitutional under Congresss power to tax. It is on these grounds that Roberts upheld the constitutionality of ObamaCare siding with the four liberal justices of the bench.
The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli but it can tax you into doing so. Huzzah for liberty!
To reach this decision Roberts had to embrace a position denied by the White House Congress and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after theyre levied). Roberts effort wrote Justice Antonin Scalia in dissent carries verbal wizardry too far deep into the forbidden land of the sophists.
Let the record show that the sophists were valued defenders of entrail-reading.
Of course there are substantive arguments in favor of Roberts reasoning. But as far as I can tell no one is confident never mind certain that Roberts actually believes his own position. And among supporters of ObamaCare from the White House on down no one cares whether he does.
President Obama -- self-praised constitutional scholar -- mocked those who called the fees and penalties under ObamaCare a tax. Now he celebrates a decision that mocks him back. Democratic National Committee Executive Director (and former White House aide) Patrick Gaspard seemed to summarize the depth of concern on his side of the aisle when he responded to the ruling on Twitter: its constitutional. B----es.
More sober-eyed liberal legal experts took similar positions. Roberts opinion was statesmanlike they claimed and more bizarrely apolitical. Some such as constitutional scholar Jeffrey Rosen speaking on National Public Radio even celebrated Roberts brilliance at finding a way to save the reputation of the court by deploying what Thomas Jefferson called twistifications.
Indeed before and after the ruling much of the journalistic and legal establishment argued that a 5-4 ruling to overturn ObamaCare would be political because the majority would be comprised entirely of Republican appointees. But a 5-4 ruling to uphold ObamaCare would be apolitical because well it just would be.
In other words if five conservative justices rule according to their well-known convictions its illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law then that amounts to leadership.
Now I dont know whats in Roberts heart but no court watcher Ive heard from puts much weight on the idea that Roberts did anything other than reason backward from the result he wanted in order to buy respect from the courts critics at the expense of his own beliefs.
At least thats one thing both fans and critics of this ruling can largely agree on.
Some of Roberts defenders claim hes outmaneuvered everyone. By upholding ObamaCare hes made future conservative decisions unassailable. Hes poisoned the well of the commerce clause for liberals. Hes removed the court as an election-year issue. Hes gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively violating a host of promises and assurances. And again hes saved the legitimacy of the court.
Thats all very interesting but it leaves aside the real issue: None of those concerns are what was asked of the court. That so few people seem to care augurs poorly for the rule of law and the auspices of our republic.
Jonah Goldberg is editor-at-large of National Review Onlineand the author of the forthcoming book The Tyranny of Clichs. You can reach him via Twitter @JonahNRO.
Why not just cut open a goat and be done with it?
In ancient Rome a special kind of priest called a haruspex would read the entrails of sheep to divine the will of the gods the health of the growing season or whatever else was weighing on the minds of men. Because animal guts dont in fact impart that much information about say next years wheat harvest the haruspices (called auspices in Latin -- from which we get the English word) could pretty much make it up as they went along. The same went for the auguries (priests who studied the flight of birds). Ultimately the auspices and auguries made their decisions based upon the whims vicissitudes and demands of politics in one form or another. If the rulers were happy with the result they didnt much care what the guts actually said.
Fast-forward to chief haruspex John Roberts.
In the majority opinion written by Roberts the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (aka ObamaCare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that its constitutional under Congresss power to tax. It is on these grounds that Roberts upheld the constitutionality of ObamaCare siding with the four liberal justices of the bench.
The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli but it can tax you into doing so. Huzzah for liberty!
To reach this decision Roberts had to embrace a position denied by the White House Congress and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after theyre levied). Roberts effort wrote Justice Antonin Scalia in dissent carries verbal wizardry too far deep into the forbidden land of the sophists.
Let the record show that the sophists were valued defenders of entrail-reading.
Of course there are substantive arguments in favor of Roberts reasoning. But as far as I can tell no one is confident never mind certain that Roberts actually believes his own position. And among supporters of ObamaCare from the White House on down no one cares whether he does.
President Obama -- self-praised constitutional scholar -- mocked those who called the fees and penalties under ObamaCare a tax. Now he celebrates a decision that mocks him back. Democratic National Committee Executive Director (and former White House aide) Patrick Gaspard seemed to summarize the depth of concern on his side of the aisle when he responded to the ruling on Twitter: its constitutional. B----es.
More sober-eyed liberal legal experts took similar positions. Roberts opinion was statesmanlike they claimed and more bizarrely apolitical. Some such as constitutional scholar Jeffrey Rosen speaking on National Public Radio even celebrated Roberts brilliance at finding a way to save the reputation of the court by deploying what Thomas Jefferson called twistifications.
Indeed before and after the ruling much of the journalistic and legal establishment argued that a 5-4 ruling to overturn ObamaCare would be political because the majority would be comprised entirely of Republican appointees. But a 5-4 ruling to uphold ObamaCare would be apolitical because well it just would be.
In other words if five conservative justices rule according to their well-known convictions its illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law then that amounts to leadership.
Now I dont know whats in Roberts heart but no court watcher Ive heard from puts much weight on the idea that Roberts did anything other than reason backward from the result he wanted in order to buy respect from the courts critics at the expense of his own beliefs.
At least thats one thing both fans and critics of this ruling can largely agree on.
Some of Roberts defenders claim hes outmaneuvered everyone. By upholding ObamaCare hes made future conservative decisions unassailable. Hes poisoned the well of the commerce clause for liberals. Hes removed the court as an election-year issue. Hes gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively violating a host of promises and assurances. And again hes saved the legitimacy of the court.
Thats all very interesting but it leaves aside the real issue: None of those concerns are what was asked of the court. That so few people seem to care augurs poorly for the rule of law and the auspices of our republic.
Jonah Goldberg is editor-at-large of National Review Onlineand the author of the forthcoming book The Tyranny of Clichs. You can reach him via Twitter @JonahNRO.
