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  • The Roberts Opinion: What Now, Politically?

    Posted by Chicago Boyz Archive on July 2nd, 2012 (All posts by )

    Most of the commentary I am seeing on Chief Justice Roberts’ Obamacare decision falls into two categories: (1) why the opinion is doctrinally and substantively wrong, and (2) the various awful things which will or might happen as a result of it.

    Point 1 may be correct. Mark Levin had a vehement and convincing analysis asserting that the opinion is legally defective. Point 2 may also be correct, the consequences of the opinion may be awful, sooner or later.

    But neither of these points much matter. Both are backward-looking. Both, in effect, say, if only Roberts had done something different than he did.

    It is a waste of time to worry about that. A Supreme Court opinion is pretty nearly immutable. John Roberts will likely be Chief Justice for decades to come. Bring down the curtain on that act in the drama. It is over.

    The only question that matters right now is this: What political dangers and opportunities does this opinion create? How can we make use of this opinion? How can we minimize the political damage from this opinion? (I notice Mr. Obama got an uptick on Intrade as a result of it.)

    A military commander has to take the terrain and weather as they are given. The set parameters within which he must operate. He cannot waste time bemoaning the mud, or the rain, or the height of the cliffs or the aridity of the desert.

    A major Supreme Court opinion is similarly a “given.” It is like a sudden shift in the terrain. It is as if an earthquake had changed the course of a river. You now simply have to work with that new feature of the landscape, and whether it should have happened or whether it is a bad thing overall are both irrelevant.

    My initial assessment is that the opinion provides a substantial amount of ammunition to people running against Mr. Obama, other Democrats, and Obamacare itself. I would like to see the many people smarter than myself focusing on this angle. We only have a few months. There is not a lot of time for theorizing. We should be thinking in strictly utilitarian terms: How can we use this ruling to win elections in November?

    Leave everything else for the “long term,” for now.


    26 Responses to “The Roberts Opinion: What Now, Politically?”

    1. Michael Kennedy Says:

      “(I notice Mr. Obama got an uptick on Intrade as a result of it.)”

      He also dropped in Rasmussen, exchanging places with Romney since the last poll. The bounce he got from the decision seems to be of the type delivered by a baseball bat. To the torso.

    2. DirtyJobsGuy Says:

      Remembering that the public did not like Obamacare on it’s face (not because it is unconstitutional), this makes the only way to forstall it to elect a GOP government. This is a tax on the middle class (meaning two $60K incomes) which is huge. More importantly the death panels are still in place, the restrictions on religious freedoms, the incredible budget costs, etc. But women in particular may like the idea of a guaranteed insurance plan, but they also value choice of physician equally. Emphasize how Obamacare will reduce not expand choices for most people.

      For young voters, show how much this will increase the cost to hire them (they will cost the same to insure as an older more experienced worker). Get the MD’s to realize they are now employees not professionals with high levels of authority.

      Throw a challenging question to your liberal or independent friends to see if they realize the impact this will have on them personally, it will get them to think.

      Don’t be afraid to project the end impact of Obamacare (the left does this). Things like “in five years there will be only one hospital/Doctor group in the area to choose from instead of three”, limits on second opinions and alternate treatments….

      We shouldn’t be afraid to use legitimate scare tactics, Churchill did this before WWII to some effect.

      Today I made small but numerous contributions to local and key national GOP candidates. I’m also working on my liberal family members who are hurting economically and need an excuse to not vote for Obama.

      Finally I fixed my flagstaff and hoisted my new Gadsden Flag along with Old Glory

    3. chuck Says:

      I don’t know about the elections, but we have a new verb, “to robert”, meaning to sell someone’s ass down the river to avoid taking a principled stand.

    4. veryretired Says:

      Roberts’ opinion, for all its convoluted legal reasoning, says very clearly that this entire matter is a political question in the sentence about “saving the people from their political opinions”.

      It is now up to future legislators and executive branchers who are opposed to the law to repeal it.

      And it is up to the voters to elect those who will do just that, instead of bowing to political pressure, which is what it appears Roberts did.

      The inexorable laws of economic and fiscal reality are grinding towards a conclusion that the American people, and the world, will rue for generations to come.

      If the people do not elect those who will do what needs to be done, they will deserve every bitter moment the crash brings down upon their heads.

    5. Michael Kennedy Says:

      ” Get the MD’s to realize they are now employees not professionals with high levels of authority.”

      I on’t think there are many doctors who don’t realize the new situation. Medical students are probably still in a bit of a fog. I will be interested to see what they think now after not teaching for three years. Hannity had a Frank Luntz focus group a week ago on his show. The group had four or five doctors. All were realistic about what Obamacare . Realists also know that the status quo ante is not a viable option for long. The HMOs picked all the low hanging fruit in the late 90s. Now, the insurance industry is at the end of its rope. That is why they were all in for Obamacare, unlike Hillarycare.

    6. David McFadden Says:

      Politically, the classification of the individual mandate as a tax can be hung around Obama’s neck. Legally, the Court’s holding on the Commerce Clause and the Necessary and Proper Clause contains a lot of good language that we can make use of in future cases. Or does it? That language is in Part III-A of Chief Justice Roberts’s opinion. The four dissenters, perhaps by oversight perhaps not, didn’t join Part III-A or any part of the chief justice’s opinion: “ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D.”

      Others have suggested that the original majority opinion was hurriedly demoted into a dissent. That may be why we seem to have seriatim opinions and no opinion of the Court on the Commerce and Necessary and Proper Clauses.

    7. Bill Brandt Says:

      The Romney people should start reading these 3,000 pages and produce ads showing how this will affect us.

    8. Davrell Tien Says:

      Obamacare is not out of the woods. The affects of the 3,000 page legislation will not be known by election time, but it is hard to imagine that it will function well. Whatever absurdities it generates will create other opportunities for legal opposition.

    9. Orson Says:

      My suspicions voiced here at Sgt Mom’s earlier thread have already come true on BBs like
      Freerepublic: civil war and secession are now topical points of discussion.

      In comments at the the blog legal insurrection (by Cornell Law prof William Jacobson), voices say that Roberts SCOTUS decision on ObamaCare say that the topic dominated weekend discussion of many people.

      One comment mentions young professionals (MBAs, lawyers, etc), who were uniformly pro-Obama in 2008, held together via a group email, but now the list finds only ONE response after Roberts Rules, the voice of a lawyer in mocking derision of Obamacare.

      Is there a sea change coming in like tidal wave? Consider this report: “Rasmussen: Conservative Anger Against Obamacare Hitting ‘Stratospheric Levels'” – Roberts Rules has galvanized Right-wing activism as nothing else could.

      The Newsmax story starts: “Conservative interest in the presidential election hit ‘stratospheric levels’ following last week’s Supreme Court ruling upholding Obamacare, noted pollster and author Scott Rasmussen tells Newsmax.TV.

      “‘All that did was energize conservatives,’ declared Rasmussen in an exclusive interview on Monday. ‘The conservative interest in the election was already much higher than that of moderates and liberals. It went up to really stratospheric levels right after the ruling. We don’t know if that will continue or if it’s just a temporary response to the news cycle.'”

      Of course. But given what we saw in 2010 elections, I think yes it will because the issue of ObamaCare is seen as the Last Stand for America.

      Some Freeper excerpts are stunning. One reads: “People are way beyond ‘angry.’ They feel that something terrible is happening to the country.”

      Another implies cvil war: “I must admit to being more furious about this [SOCTUS Roberts’ Rule] than I have ever been with government….I would have never imagined the SCOTUS taking this line of defense for death care. LOCK and LOAD.”

      The Freeper line has been unalterably opposed to Romney, but one member there has resigned his membership over this matter.

      Another admits to having reversed his opposition: “I’m voting for him now. The tea is in the harbor. There’s no turning back now. It’s 1774 again and we’ve just been handed the intolerable acts.”

      One writer reports on a regular caller to his local radio talk show who’s always talking about succession as the solution. Now it becomes a chorus: “He was an assistant at the U.S. Justice Department. Rick [from Lewes] worked for Robert Bork. Rick argues the liberals will rejoice as the red states go their own way. It means the left can consolidate power in the remaining Decrepit States of America. Eventually the leftist empire will collapse and the walls will fall and there will be a new dawn for a liberty loving USA.”

      People are fighting mad. Still more: “Let’s give the Chief Justice credit. He’s accomplished something that hasn’t been done since the 1860’s: he’s shifted the idea of secession from the fringe to the mainstream.”

      Yet another thread generates this call to campaign arms – a ‘Do or Die Time’ imperative to win now or lose it all, closing with a gem of a one-liner:

      “‘[Radio talk show host and lawyer turned author, Mark] Levin also said that we should forget about the mandate being a tax and go after Obamacare on the substance of what it really is.'”

      “Good statement. And it reminds me of a post Civil War Abraham Lincoln quote …

      “‘Whenever I hear anyone arguing for slavery I feel a strong impulse to see it tried on him personally.” (Speech to 140th Indiana Volunteers, March 17, 1865)

      “In short, obedience to Obamacare is akin to being Obama’s slave: a substance that really is inside Obamacare.”

      Yes, ‘Obamacare is akin to being Obama’s slave.’ Since it is true, let’s revel in the God Damn irony of it like a bumper sticker; go forth and multiply the thought everywhere.

    10. Jonathan Says:

      Rick argues the liberals will rejoice as the red states go their own way. It means the left can consolidate power in the remaining Decrepit States of America. Eventually the leftist empire will collapse and the walls will fall and there will be a new dawn for a liberty loving USA.

      I don’t see this happening. The populations of even the redder states are too politically heterogeneous. More important, there is no way that pols in spendthrift blue states would willingly accept the loss of tax revenue implied by this kind of dramatic scenario. What’s more likely is some version of Jim Bennett’s Big Haircut — a rolling series of economic adjustments that affects blue and red states alike as the welfare state’s financial implosion becomes imminent.

      The Left is pretending that it can push schemes such as Obamacare through against the will of a large fraction of the voting population, and in the short run it can. This is a lot of what enrages non-leftists. But in the not-so-long run, unless there are broad-based national reforms, even (or especially) blue-state govts are going to start running out of money to pay off their favorite constituencies. So there will be fiscal reorganization one way or another. The Right acknowledges this even if the institutional Republicans are slow to catch on. The Left and the Democrats still for the most part pretend that there is a secret stash of money somewhere that they can use to keep the current system going if only they can get their hands on it. But eventually they will be forced by financial necessity to acknowledge reality.

    11. Robert Schwartz Says:

      Spit on the ground when Roberts name is mentioned.

      Send him a letter with a brief text: “For Shame. Resign”

      Imagine how he would feel if he got a couple of million of those.

    12. Orson Says:

      ” The Left and the Democrats still for the most part pretend that there is a secret stash of money somewhere that they can use to keep the current system going if only they can get their hands on it. But eventually they will be forced by financial necessity to acknowledge reality.”

      I like Jonathan’s insight. As drsanity (just google – she’s a REAL teaching psychiatrist) points out, denial always hides an agenda.

      But there’s functional denial and there’s dangerous denial. I expect the latter delusion to persist and persist and live on a long time for many – especially among the Left.

      And with Robert, I also endorse the “For shame. Resign” Roberts! sentiment – I’ve already sent such a card to the CJ.

    13. Mrs. Davis Says:

      I notice Mr. Obama got an uptick on Intrade as a result of it.

      Is that the same Intrade that gave a 75% probability that Obamacare would be held unconstitutional? Smart money isn’t always correct money.

      The blue social model is dying and it’s a painful and prolonged death. We are in a debate about the new social contract to replace it. It’s not up to any single person to decide. Roberts has wisely tossed the decision upstairs, to The People, for final disposition. As Justice Holmes said, “if my fellow citizens want to go to Hell I will help them. It’s my job.” The decision on how to proceed is firmly in the hands of the citizens and that is how it should be. Roberts did his job and did it well.

      Now get the people elected who will rewrite the social contract under the correct principles.

    14. Percy Dovetonsils Says:

      “The Left and the Democrats still for the most part pretend that there is a secret stash of money somewhere that they can use to keep the current system going if only they can get their hands on it.”

      Nope – I’m choosing more leisure (well, actually more martial arts training) than working more. I’ll be g*ddamned if I have to toil for these swine. Also, I plan on using every tax avoidance trick I can. (The various repair people who work on my house are going to see a lot more cash payments.)

      Look for a lot of people to do the same. That’s the darndest thing about incentives.

    15. Bill Brandt Says:

      @Percy – when I was stationed in Germany 40 years ago there was quite an underground economy – because of the taxes. And I am sure it is only bigger today (the taxes and underground economy).

      Amazes me we are spending a trillion more per year than taking in – Senate refuses to even address it – as the President – thinking it is going to “appear” somewhere. Even if you could somehow confiscate all the wealth of “the rich” (forgetting for a moment the law of unintended consequences) it wouldn’t begin to cover this deficit.

      Some of these people I’m afraid – lack skills in basic addition and subtraction. And they think in just linear terms – that whatever they want – and tax – will magically appear without people changing spending (and working) behavior.

    16. Cousin Dave Says:

      “The Left and the Democrats still for the most part pretend that there is a secret stash of money somewhere that they can use to keep the current system going if only they can get their hands on it.”

      Yep. The Left is certain that as soon as they locate Scrooge McDuck’s money bin (which they just know that those mean ol’ conservatives are hiding from them), then all will be paradise. Paaaar-tay! But of course, it doesn’t exist. The oft-repeated Heinlien quote about bad luck fits here. But the thing is, the Left doesn’t really care if economic collapse happens or not, as long as a minimum level of economic activitiy continues such that the Left elites can continue to be supported in the style to which they’ve become accustomed. They 19th-century aristocracies never really died; they just went underground. Now they’re back, and in our faces, and there isn’t any other continent that we can move to in order to get away from them. One would hope that beheadings will not be necessary this time, but one never knows.

      As for the SCOTUS, through all of the confusing mess the one message that comes through loud and clear is: “Voters, clean up your own damned mess.” It’s time. The decision hands the 2012 election to the Republicans, if they are smart enough to take advantage of the opportunity. Full repeal of Obamacare must be the first step. After that, expand the mandate to taken on federal bureaucracy generally. I’d like to see most of the federal agencies be stripped of the power to enact new regulation. Do we really need the EPA imposing billions of new costs on the economy in order to achieve that seventh decimal place of reduction in airborne dust? Some existing regulation could stand to be rolled back. In the financial area, repeal of Sarb-Ox and the 1997 Community Reinvestment Act would be a good start. Once that is done, beef up the SEC so that it can actually enforce the regulations that matter.

      The taxing power eppansion that the SCOTUS opened can be closed via constitutional amendment. Anger over the Obamacare tax opens a political window for a larger income tax reform, which up to now has not been front and center in most people’s minds. An amendment that replaces the 16th Amendment, creates either a flat tax or a national excise tax (I’m neutral on which one), and strips Congress of all other taxing power besides import duties, could find a broad base of support. The Left will cry and scream like babies, but everyone else is sick of hearing it.

    17. Michael Kennedy Says:

      I agree with Jonathan, as usual, but I am concerned that there is a large leftist segment of the population that ignores consequences and relies on wishes making things come true. There is a Bob Zubrin piece today about the greens’ opposition to forest management and the consequences that include the current Colorado wildfires. The enviros oppose any logging, even to remove dead trees that may burn, and the people who oppose drilling for oil and gas seem willing to live without a secure power infrastructure. If California gets hotter late this summer, as is usually the case, I expect brownouts and failures. The enviros that enlisted the judge who shut off irrigation to the central valley don’t seem concerned about 25% unemployment in central California.

      These people live in another world and think gay marriage is as important as inflation and interest rates. Bill Clinton said, if there was reincarnation, he wanted to come back as the bond market because it seemed to be the most important thing there was. Obama doesn’t care about the bond market. Neither do his voters

    18. Ginny Says:

      Jonathan, I’ve got a friend who likes to talk about the medieval mentality of the left – that they think the right are mysterious alchemists who can, at their will, make gold. But of course it is the left who thinks they can produce magic – change what burns, make energy out of nothing, alter human nature.

    19. Jason in LA Says:

      Michael Kennedy:

      That’s the big difference between today and 1993-1994. Unlike the Clinton administration, which was whipsawed by the bond market during it’s first few years, this White House was able to censure the bond market’s input through financial repression under the guise of “QE2”, “QE3” and “operation twist.”

      Interest rates aren’t allowed to rise less Mr. Bernanke would then monetize the debt. Mr. Geitner and the FDIC’s Ms. Sheila Blair also played a part by forcing major domestic banks to hold more treasuries under the guise of stress tests and capital cushions for Basel III. The one bank that refused to play along quietly, and holds fewer treasuries than their peers, JPM, is currently getting flambéed by congress for it’s recent trading loss.( A loss of about 3% of their total trading capital.)

      Rahm Emmanuel’s statement about not letting crises go to waste has proven rather prescient.

      There are 15 incumbent Democrat Senators up for reelection this November. Other than Feinstein in California and Gillibrand in New York, they all should be scared shitless.

      It is up to Mr. Romney and the RNC to capitalize on this opportunity. If you did not see it before, there is no denying now, a notable ideological delineation in this election. A court somewhat sympathetic to Mr. Obama called his centerpiece legislation exactly what it is, a tax. It is little wonder why all Democrats just want this issue to go away with the court’s decision. But it won’t, nor should it go away. It is our obligation as the opposition to not let it go away.

      Instead of the streets or college campuses, the productive class in America protests at the ballot boxes and riots in the financial markets. Romney needs to make this election about the economy, taxes, and liberty. Mr. Obama said he would not raise taxes on the middle class. He just did. He and his party need to pay the price. Otherwise the riots will then occur in the financial markets. And they would be messy. This financial repression cannot go on forever.

    20. Mrs. Davis Says:

      For Chicago Boyz, there’s a lot of monetary misunderstanding going on. The reason the bond market is silent is not because Barry has more mojo than Billy, it’s because there is no threat of inflation on the horizon. When the market begins to suspect inflation will return, rates will skyrocket. The Fed has been borrowing short and lending long. When this turns around, it will be an avalanche for the government. Until then, no inflation in sight means long term rates stay low.

    21. PenGun Says:

      The bond market has been destroyed by Uncle Ben. You can only debase your currency so far before your long term rates fall to very little. The bond market is a useful canary though.

      It really should be enough of a clue that you have to chose between Obama and Romney. Both are bought and paid for. Both have very similar attitudes towards government. In reality you don’t get to chose jack.

    22. lhf Says:

      The main point that Romney needs to make is that the Affordable Care Act does nothing to make purchasing health care affordable.

      The Act was a gift to the health insurance companies – that’s why they supported it. The cost of health insurance will continue to rise, along with insurance company profits.

      One provision of the law is that insurance companies cannot charge higher premiums for taking on higher risk customers. That means that EVERYONE’S premiums will continue to rise. No one talks about this, but it seems pretty obvious to me.

    23. Jonathan Says:

      I agree with Mrs. Davis’s first comment. (I agree with her second comment as well but it’s not relevant to my point here.) However, I think that Intrade should be taken seriously as it confirms that the SC ruling was a major political victory for Obama. There was an immediate three-point pop in his reelection odds that has increased to four points. If this had been merely a smart money vs. correct money thing I suspect the odds would have settled down by now. What I think the bookmakers’ numbers reflect is that by winning in the Court Obama stopped Romney’s political momentum cold and now has the edge, regardless of heightened Republican/conservative outrage. The anti-Obama political forces are now spending their limited time before the election reacting to the cascade of events and implications that have flowed from the Roberts ruling, rather than attacking Obama on the economy etc. Obama’s political forces now can put more resources into getting out the vote rather than defending the Administration against attacks and scandals. For these reasons alone I think it would have been much better if Roberts had voted in opposition, however sensible his opinion might be in some theoretical way.

    24. Bill Brandt Says:

      The blue social model is dying and it’s a painful and prolonged death. We are in a debate about the new social contract to replace it. It’s not up to any single person to decide…….

      Mrs Davis – I was intrigued when I read this a few days ago. We don’t know the from the present what will become historical significant events – seems history is always best recognized from the rear view mirror.

      I hope that your opinion is a prophesy.

      One thing is for sure – the economics cannot sustain the blue model.

    25. tomw Says:

      LHF said:”One provision of the law is that insurance companies cannot charge higher premiums for taking on higher risk customers. That means that EVERYONE’S premiums will continue to rise. No one talks about this, but it seems pretty obvious to me.”

      It is just as obvious to me that the math of your comment leans to decreased insurance revenue, or profit, as people will stop paying the inflated bill, and opt for the ‘mandate’ penalty, Ok, Tax.
      That means fewer insured, and thus decreased revenue and IMO, insurance companies that no longer offer health care insurance. Everyone will be in the Federal boat…
      If you consider that the bill MANDATES that 80% of policy premiums be paid to insured, that 20% doesn’t leave a lot for profit and investment in increasing efficiency. There’s no incentive when the profit motive is blocked. Everything will stagnate.
      The insurance companies signed a deal with the devil, and failed to read the small print. Ha, the tables turn, no?
      There will be fewer insured by industry provided health care as paying the tax will be cheaper. If everyone does it, and it is a legal option, why not? ‘splain to me why the GM, GE and Kroger will not just say, here’s the tax money, send it on to uncle, and get your own.
      BTW, what happens to the union waivers? Do they have to pay the tax? Is that not some sort of discrimination if you just don’t happen to be a unionista??

    26. Tyouth Says:

      It may be called “insurance” but is it “insurance” if there isn’t any underwriting done? I don’t think so.

      Health insurance providers will simply be agencies for a federal government’s socialist healthcare plan. It will be a fascist compact between business and government.