The Dangerous Self-Delusion of Some Conservatives

Et Tu, Brute?

In the wake of the Supreme Court ruling on the Affordable Care Act, I have noticed a curious phenomenon in which some conservative commentators seem to be so desperate to find a silver lining to the ruling that they have abandoned all logic.  Consider George Will, who wrote a column in the aftermath of the ruling that actually puts forward the argument that we conservatives should take the fact that Roberts didn’t rely upon the commerce clause as evidence that there might be some constitutional limitation on the federal government after all.  That would be a wonderful aspect of this ruling, if they had overturned the law!  Instead, what we have is a monstrous precedent set in which the court re-writes a law in order to make it constitutional by imputing into the act a tax that had not existed in fact.  This is an unmitigated disaster.  I have heard a few who have noted hopefully that this ruling will energize the conservative base, and while that’s probably the case, I’m not certain I am so concerned about the political fall-out as I am about the long-run constitutional implications.  You see, the political situation may permit us to repair the law, but it doesn’t permit us to immediately repair the damage done to the body of case law  upon which future courts will rely as precedents in their own rulings.

The other thing I have read is the bizarre notion put forward by the National Review that what Roberts did was more conservative because he exercised judicial restraint in not striking down the law.  Balderdash!  Once you realize the legal contortions through which Roberts arrived at this ruling, it makes no sense whatever to claim he hadn’t acted as an activist.  The convoluted logic by which he found a tax in a law that plainly states it does not contain one is an onerous breech of any notion of strict construction.  I cannot conceive of any intellectually rigorous examination of this ruling by which this can be seen as a positive by anybody who is in favor of strict construction.  When it came to the Anti-Injunction section of the ruling, it was held not to have been a tax, but just a few pages later, as Roberts performed mental gymnastics, he declared it was a tax after all.

On Thursday evening, Mark Levin summarized the matter better than anybody I’ve heard speak to this matter, in part because he understands the legalities in question, his Landmark Legal Foundation having been a participant in this case, but also because he knew Justice Roberts years ago when they both worked in the Reagan administration.  Levin’s critique of the decision mirrors most of my own, and indeed, there was one aspect I hadn’t considered until Levin led me to it.  That premise led me to yet another that I don’t believe Levin has yet realized in full.  What one must understand is that this ruling is an unmitigated disaster, and no search for some alleged silver lining can repair it.

What justice Roberets actually did was to expand the definition of what constitutes a permissible tax .  Congress is permitted to levy only certain forms of tax, and this one doesn’t fit the definition of any of them.  In dispensing with that issue, Roberts held that it didn’t matter, and that words don’t matter, and that plain-written legislative language doesn’t matter.  He also ignored the context of the law, and the intent of Congress.  One version of this bill had an actual tax, but Congress could not pass it in that form, so Congress altered it to contain no tax.  What John Roberts did was to ignore the actual text of the legislation, and to say that the labels didn’t matter:  If it looks like a tax, it is one.  The problem with this is that it does nothing to restrain Congress from levying new taxes, and ignores the definitions of what sort of taxes Congress may enact.  This is a wholesale extension of Congressional taxing authority because what Roberts ruled with respect to the particular form of the tax, insofar as the question of whether Congress had met the constitutional limits on whether it could impose it was effectively: “Close enough.”

That is offered to us as evidence of John Roberts’ alleged strict construction?  Close enough?  What this means, effectively, is that if Congress enacts some tax that it has questionable constitutional authority to levy, smiling John will be there to tell us it’s “close enough,” with every leftist monster on the court standing behind him to uphold it.

Ladies and gentlemen, there exists no silver lining to this ruling.   All of the crackpot, delusional happy-talk from some conservatives in media is designed to make you feel better.  You’ve just lost both arms and legs in a brutal assault, but they tell you, you should consider this a happy opportunity to enjoy the comforts of a new wheelchair and mouth-controlled joystick.  You’ve just lost your family to a violent home-invasion, but, they tell you, you should view this as a chance to start over.  The intention here is to keep you calm.  The intention now is to serve a political end, while your country is dying around you.  Your most sacred law, the US Constitution, has been crumpled and tossed into the ash-bin of history, and you are told you should do a happy-dance to the calming sounds of “Oh Happy Days.”

I’d like you to inventory the whole of the conservatives to whom you listen, or whose columns and opinions you read, and I want you to take care to note which of them are imploring you to consider some silver lining.  They are lying.  They have good intentions, many of them, and they have contorted themselves into a formless spaghetti of reasoning in order to find some good in this awful plate of refuse you’ve been handed.  Don’t surrender your minds by sprinkling Parmesan on it and wolfing it down.  Are there some limited political opportunities as a result of this decision? Yes, but they require the fulfillment of a whole laundry-list of “if-then” statements.

IF Mitt Romney is elected, and IF he doesn’t sell us out, and IF we hold the House, and IF we recapture the Senate(and at least 60 votes) and IF the moderates in either house don’t screw us, and IF Boehner and McConnell have the guts to do in repealing what the villains Reid and Pelosi did in passing the ACA, and IF they can deliver a bill to President Romney’s desk, and IF John Roberts and the other liberals on the court can be replaced, and IF Mitt Romney can replace them with actual strict constructionists, THEN you might have a chance to undo this damage.  IF any of these don’t happen, your constitution is effectively dead as a restraint on government.

The danger of self-imposed delusions is that you come to believe them, like a pathological liar.  It is by this form of self-delusion that we’ve permitted our country to lose its roots in reverence for the Constitution.  We cannot defeat the statists by pretending this isn’t the disaster that it is, if we can defeat them at all.  I believe some talking heads know this, but do not want to yield to what will come in the wake of such a monstrosity.  They’re hanging on, stubbornly telling us that the stench of smoke reaching our nostrils is merely an air freshener of a novel scent.  Rather than screaming “Fire,” and warning conservative Americans that the house is ablaze, the barn is wiped out, the surviving farm animals running loose in a frantic bid to stay ahead of the flames licking at their heels, many are now telling you that it’s all okay.  It will be fine.

No, it won’t.

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  • http://www.facebook.com/profile.php?id=100000760123006 Danny Jeffrey

    I have seen so many photos lately of people with their head in a hole in the ground. My fellow patriots post these, make a comment that people should wake up, and then they go put their head back in their favorite hole in the ground.
    It strikes me as odd how Wednesday everyone was praying that SCOTUS would strike down the ObamaCare, now, rationalizing, they are saying thank God they didn’t Their are NO political solutions to our dilemma. No politician is going to save us. It is up to Americans to either take back their freedom or accept bondage as their future.
    . http://www.freedomrings1776.com/2012/04/romney-versus-obamathe-decline-of.html

  • Lwhiteym

    Seeing good in the upholding of the ACA is as dilusional as Roberts saw in upholding it.

  • the unit

    Right rewrite, bait and stitch, court and C.J. be a part of history…hook line and sinker.  And some Rep. congresspersons calling for vote on repeal prior to Nov. 6…save my er…what’s that called?

  • Lwhiteym

    Delusional…. If if was a skiff…

    • the unit

      Often I hit the wrong key, like just below meant bait and switch.  Believe you meant we were stiffed.

  • Kathie

    A very clear-eyed view of what has happened. The kindest explanation for the obtuseness of Will, Krauthammer and others is that they are in denial of what has happened. A less charitable interpretation is that they’re so entangled in the Republican system that they must defend it even to the point of absurdity. Sometimes victims of acquaintance rape convince themselves that it was consensual, because they can’t face the horrible reality. That’s what these alleged Conservative thinkers sound like, and as far as I’m concerned, they’ve lost all credibility.

  • http://www.facebook.com/people/Thomas-Dixon/1649923542 Thomas Dixon

    You’re absolutely right, Mark, about the talking heads and pundits each trying to put a miraculous spin on these events, but only to validate their rank in the pecking order of believability.  Even Rush Limbaugh entertained a Virgina lawyer on the phone yesterday, who said the ruling is not as described since its foundation is derived from Justice (?) Roberts’ slip opinion offered orally upon announcement Thursday.

    That there is some basis for repealing the (god-awful) law as result of Roberts’ condensed description of his logic is stretching the limit of my sanity ~ and for the only purpose to identify a ‘silver lining’ to the debacle.  We will hear a myriad of opinions as to the current state of liberty in our country.  But, you described our condition best: we’re screwed now that Caesar has crossed the Rubicon.

    Now more than ever, we need our true leaders (Sarah, Demint, & others) to step to the forefront if there  be any hope of salvaging the Republic.

  • Cindi

    you’ve nailed it..

  • Tom Hoefling

    You nailed it. One of the best takes on this travesty I’ve seen. Way to go! I’ve shared this in a number of conservative forums I participate in, and on the social networks. Every American, and especially every American who fancies themselves to be a conservative, needs to hear what you have to say here.

    • http://www.markamerica.com/ Mark America

      Thank you Tom, that’s especially kind!

  • another_engineer

    I honestly believe that Roberts was driven by his socialist roots which are put forth in the catholic church. 

  • B. Johnson

    Justice Roberts needs to explain why he referenced the Gibbons v. Ogden case in the Obamacare opinion, seemingly ignoring two statements in the Gibbons opinion which indicate that his tax argument doesn’t hold water.

    Below are the two statements from Gibbons.  Note that the first statement clarifies, in one sentence, that not only does Congress not have the power to address public healthcare issues, healthcare being a 10th Amendment protected state power, but also that Congress has no power to interfere with intrastate commerce; FDR’s activist justices got the Commerce Clause wrong in Wickard v. Filburn.”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.”  –Gibbons v. Ogden, 1824.”Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice Marshall, Gibbons v. Ogden, 1824.

    Note that since Congress has no power to make public healthcare-related laws Congress cannot make healthcare-related tax laws, imo, any more than it can make healthcare-related penalty laws.Sadly, the corrupt federal government’s power grab concerning Obamacare is delaying states whose legal majority voters would approve their state establishing a healthcare program, Massachusetts’ RomneyCare for example, from doing so.

  • carmtom13

    Mark this is one of the best post I have read about what Roberts did, I will be sending out to all my conservative friends, you really hit the nail on the head.

  • Carlirwin32

    Some conservatives on this issue are reminding me of that old joke about the man who jumped from a 30 story building and as he fell he would yell out at each floor he passed, “well everythings okay so far!”

  • the unit

    I don’t see any comments I disagree with.  But even with a court lacking common sense…from the beginning the court has said “the law is what we say it is.”  And we are living under decisions not so much agreeable to me.  So we are falling floor past floor and the last may be floor marked Nov 6, 2012. Perhaps we can fall all over our selves to prevent being that “flat animal that sleeps in the road.”  Bodies below have prevented the squashing before.  Get out and vote for House and Senate.

  • JPT

    This is fine post. I left Free Republic in 1999, was banned by Jim Robinson actually for making this argument then. He didn’t have mods in those days. A lot of us saw the writing on the wall years ago. But, you said it much better than I did, and I hope you’re able to convince people.
    My liberal friends and family were terrified. I told them to relax. I told them the entire ACA would be upheld. I told them it would be 6 – 3 or 5 -4, and it was. I knew it would be because I *WAS* a conservative for years. And after years of watching them, I know how conservatives (elites) and Republicans operate.They are liars; they are shills. You can never underestimate their mendacity and hatred of the people they purport to represent. 

    • the unit

      This is going to be fun to see.  Yep, the fellow we elected in ’94 was looking for a TV program somewhere down the road.  That’s what we got to watch at election time.  Already some congresspersons are calling for a repeal vote before Nov. 6, to say we are here on your side.  What a joke.

      • the unit

        That was Northwest Florida’s Morning Joe.

  • Titoalba

    I believe that Roberts is compromised and was so from long before he was nominated for the SC, probably the compromise is why he was nominated.  Obama does not hold Roberts strings but he knows who does and he knows he has nothing to fear from Roberts.  That is why he felt free to show disrespect to Roberts and all the Justices during his State of the Union address.  And that show of disrespect should have tipped us off – as Obama is a coward and would never attack anyone he feels is stronger then himself but has complete disdain for any others held in thrall like himself. 

  • Stand Taker

    World-class writing, Mark. Amazing.

    Since the punditry like to bleat on about the politics of this, why don’t we shine a light on Breyer, Ginsburg, Sotomayor and Kagan (who should’ve recused but didn’t. Criminal.)? Each of these four heard the same oral arguments everyone else did. You know, the ones that led everyone to believe the mandate didn’t stand a chance. Yet they voted in lock-step to uphold a blatantly unconstitutional law. Their votes, like Roberts’, were pure treason. I don’t care what their political leanings are. A Supreme Court Justice is compelled to follow the Constitution to the letter. There must be no room for subjectivity. These idiots are every bit to blame as Roberts. He just gets all the heat because his vote wasn’t “expected.” The SC is not a grand collection guarding virtue and integrity. It is nothing more than a group of humans pushing their values, or lack thereof, upon us. Might as well pick nine randoms off the street to do the job.

    The past three and a half years have felt like the Twilight Zone, some alternate reality like that seen in Back To The Future II. Old Biff alters history for the worse, turning Hill Valley into a perverted, sinister version of itself.

    I watched the decision being announced on live TV Thursday within the comfortable, like-a-second-skin confines of my home of the last 25 years. Once the word “upheld” was uttered, my home, virtually the only safe haven I have on earth, felt at once like it had been stripped, gutted, set afire, and I was fighting for survival. The feeling of violation was saturating. I again felt the galling feeling I felt on Election Day 2008: “My country is gone.”

    • http://markamerica.com markamerica

      Stand Taker, You’re very kind. I feel the same way about the violation I’ve suffered, and the relatively few dolts who believe this is a good thing are of a slave’s mindset anyway. I know how Congress can fix this, however. They don’t have the guts to do so, naturally, so we’re probably screwed.

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  • http://twitter.com/Winston80 Winston

    F-ing RINOs r killing America

    (Edited by Moderator)

  • http://twitter.com/147DW 147DegreesWest

    Too many “Ifs.”

  • http://profile.yahoo.com/F26CKLUT6NKFQFK23K7L4EGSI4 Nathan Hale

    There are no positive points to this.  This ruling effectively reduces the Constitution to the worth of a piece of used toilet paper.  This was no surprise as it has been the intent of the Left for almost all of the last 40+ years.  Why do you think they have been so Hell bent on getting rid of the Second Amendment?  It’s very easy to control a populace that cannot fight back.

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