ROBERT HARKINS J.D.
Sophist: teacher of philosophy and rhetoric moral skepticism and specious reasoning. A person who reasons with clever but fallacious arguments.
I begin with a few first principles of judicial construction.
The Supreme Court, in deciding whether a law is constitutional, accords deference to Congress. Deference however may not corrupt its obligation to determine whether or not the law is constitutional. The Supreme Court is not a legislative body. Its justices may not legislate from the bench. They must instead look to the Constitution, case law, to the intention of House, Senate, and in a ministerial sense the president.
Supreme Court justices may not rewrite a law so as to make it constitutional. The judicial rewriting of a law passed by Congress separates the democratic and legislative process from the people. The people by their vote may throw out a faithless congress or president. Supreme Court Justices once elected function beyond the democratic process and are not subject to the approval or displeasure of an electorate. The Supreme Court has taken full advantage of its immunity to the will of the people.
Supreme Court Justices may not pollute their judicial oath by construing a law or ruling upon a case so that it conforms to their ideological worldview. Nevertheless, the judicial imposition of personal ideological visions is now part of Supreme Court practice. One need only look to the spectacle of judicial confirmation to understand that ideology is the gold standard. It is no coincidence that a leftist president submitted the nominations of judicial leftists Justices Sotomayor and Kagan or that during the confirmation process questions puerile and obtuse were used to masque their constitutional heresies. Since Earl Warren, the Supreme Court has become more an instrument of mass ideological manipulation than the standard bearer of constitutional government.
Obamacare is now the constitutionally sanctified law of the land. Predictably, President Obama— who recently characterized the justices as unelected judges who believe erroneously that they are empowered to determine the constitutionality of laws— now refers deferentially to a “High Court” that has courageously declared constitutional the healthcare outrage the president and a renegade Congress have inflicted upon an American people.
In conduct essentially legislative, Chief Justice John Roberts, once presumably conservative, and a leftist clique of justices have imposed upon a majority of protesting Americans a universal healthcare system mired in political corruption, at once ruinous, fantastically expensive and blatantly unconstitutional.
The Supreme Court and the president have never been so perfectly harmonious. Even as President Obama continued to assert that the healthcare mandate is a penalty and not a tax, he authorized his solicitor general to argue precisely the opposite: that the mandate is a tax and not a penalty.
The Supreme Court noted that the Anti Injunction Act which prohibits the litigation of tax issues until the tax is actually being paid would have prohibited the filing of suit and appeal to the Supreme Court. To this the solicitor general nimbly replied that Congress intended the tax to be a penalty so as to render the Anti Injunction inoperative and thereafter a tax so that the mandate would be enforceable pursuant to the government’s taxing power. The government’s argument unprecedented, convoluted and specious prompted the wrath of the dissenters. "General Verrilli, Justice Scalia asked,
today you are arguing that the penalty is not a tax," "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. (Emphasis added). Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
"No," answered Verrilli.
In fact, the Justice Scalia wrote that,
…we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).
However unprecedented the government’s theory, Chief Justice Roberts swallowed it hook, line and sinker. He reasoned that where it is fairly possible to think of the penalty as a tax, then it is a tax. Accordingly, the Supreme Court ignored and in effect struck from the health care law no less than eighteen congressional references passed by the House, Senate and signed by the President. All eighteen of these references defined the mandate as a penalty and not a tax. Moreover, in dozens of speeches the president, democrat senators and representatives emphatically stated that the mandate was a penalty and not a tax.
Nevertheless, Chief Justice John Roberts has declared meaningless the laws plain language and so has rewritten it—simply because he thinks that he can. In this he has engaged in judicial legislation, usurped the constitutional powers of the House, Senate and Executive and violated in letter and spirit the Constitution it is the Supreme Court’s reason for being and duty to protect.
The Chief Justice then correctly held unconstitutional the government’s attempt to justify the mandate upon its power to regulate interstate commerce. He warned ominously that extending the commerce power so as to permit the government’s confiscation of income from citizens who do not enter interstate commerce would be an unconstitutional extension of federal power.
However, that power which the Chief Justice took away from the government with one hand he gave back with the other. If the extension of the government’s power to confiscate income when based on the commerce clause is a reprehensible evil, how does precisely that same confiscation of income become permissible merely because it is imposed pursuant to the taxing power? It appears that Chief Justice Roberts has ordered that the people be strung up on a constitutional silken cord rather than an unconstitutional hemp rope. The result however, whether silken or hemp, is a public hanging.
Let us suppose that the government, in order to prevent the destruction of the earth due to the impact of global warming, passes a law ordering the reduction of carbon emissions. To that end, Congress mandates that all commuters within forty miles of their employer must surrender their automobiles, purchase bicycles, bicycle to work or otherwise pay a “tax” of $1000.00 to $10,000 per year depending on their net income. If we follow the reasoning of the Chief Justice, so long as the confiscation is designated a tax –however much in reality it may be a penalty—the people must buy bicycles and start peddling.
Some writers speculate that Chief Justice Roberts has embraced a philosophy of judicial restraint, deference and judicial modesty. The dissent however, finds the Chief Justice’s theory incredible. Justice Scalia writes that
The Court regards its strained statutory interpretation as judicial modesty. It is not. 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. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
There are few judicial scholars more eloquent than Justice Scalia. He must have the last word here.
What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.