When you stop by the Castle, ask to see Mandy’s extensive collection of things that are simultaneously live and dead. Just don’t get too close.

By now, much ink has been spilled by people far more intelligent than ‘Puter weighing in on Chief Justice John G. Roberts’ majority opinion in National Federation of Independent Business v. Sebelius, 567 U.S. ____ (2012)(No. 11-393, decided June 28, 2012).  Unfortunately, much of this ink has been spilled by conservatives deeply critical of Chief Justice Roberts, relying on deeply flawed logic and a fundamental misperception of the role of the United States’ Supreme Court.

One need not be an attorney to comment reliably on Supreme Court jurisprudence, but based on the histrionics, ad hominem attacks and outright falsehoods ‘Puter’s seen from his side of the aisle on the ObamaCare decision, it sure helps.  ‘Puter’s more convinced than ever that liberals and conservatives both are committed to impermissibly using government power to cram their respective agendas down the throats of those with whom they disagree.  Some conservative reaction to Chief Justice Roberts’ decision has shown ‘Puter as much. And ‘Puter, like Chief Justice Roberts, doesn’t want to see politicians with agendas using the unelected and powerful federal judiciary to avoid making the tough decisions.

‘Puter believes Chief Justice Roberts’ is a deeply conservative opinion, so conservative in fact that so-called conservatives have missed exactly how radically conservative the opinion is.  If you have not read the Chief Justice’s opinion, you must, else your commentary is mere hearsay, which ‘Puter will disregard as the selection bias marred parroting of others’ opinions.  ‘Puter will touch briefly on the portions of Chief Justice Roberts’ opinion dealing with ObamaCare’s individual mandate, as those portions are the ones causing such consternation and confusion among ‘Puter’s conservative brethren (and sistren).

1.  What is the conservative view of the federal judiciary’s Article III power?

Briefly, conservative jurists believe courts should, assuming a ripe case or controversy, make the narrowest decision it can make to reach a final determination.  Further, conservative jurists believe in the concepts of stare decisis, separation of powers and judicial restraint.

Stare decisis requires a conservative judge to abide by settled decisions.  This is the taunt liberals throw at conservatives when conservatives overturn plainly unconstitutional acts of lower courts, or earlier courts of similar standing.

Separation of powers requires a conservative judge to know his place.  That is, to decide the case before him, and to avoid substituting his policy preferences for the legislature’s, where policy is decided by the people’s elected representatives.

Judicial restraint requires a conservative judge to assume the acts of the co-equal legislature are Constitutional, and to uphold them unless there is no possible reading of the enactment that complies with the Constitution.

To all the Chief Justice Roberts bashers among ‘Puter’s conservative fellow travelers, please explain where, in any portion of his decision, Chief Justice Roberts strayed from these maxims? ‘Puter would think his fellow conservatives, while disappointed in the outcome would support the Chief Justice’s process.  Unless, of course, ‘Puter’s fellow conservatives have abandoned their conservatism in favor of the unrestrained liberal position that the ends justify the means.

If you read nothing else in Chief Justice Roberts’ opinion, please — ‘Puter’s begging you — read pages one through six.  The Chief Justice succinctly explains and defends his conservative judicial philosophy and the daunting task with which the Supreme Court was faced.

2.  What is a “tax” for purposes of the Anti-Injunction Act?

Spoiler alert: ‘Puter does not include any information in this section about Chief Justice Roberts’ “Schrodinger’s Tax.”

The Chief Justice determines appellants have standing to bring a challenge to ObamaCare because the individual mandate is not a “tax” within the meaning of the Anti-Injunction Act.  See, Majority Opinion, Section II, pp. 11-15. The Anti-Injunction Act holds that federal courts are without jurisdiction to hear challenges to taxes until such time as the tax has been assessed and collected. 26 U.S.C. sec. 7421(a).

‘Puter’s heard much criticism of the Chief Justice’s opinion for having it both ways.  That is, for purposes of standing, ObamaCare’s individual mandate is a penalty, but for purposes of Constitutionality, ObamaCare’s individual mandate is a tax.  Many conservatives find the Chief Justice’s holding ObamaCare’s individual mandate of a dual nature (a) illogical and (b) chickening out.

Wrong.  Chief Justice Roberts carefully explains that for purposes of the Anti-Injunction Act, the Supreme Court need not reach the constitutional nature of ObamaCare’s individual mandate. In deference to Congress’ power to enact legislation (see, i.e., those pesky concepts of separation of powers and judicial deference, supra), the Supreme Court must defer to Congress’ determination of the proper interaction between and among statutes, so long as such determination is logical and otherwise constitutional.

Chief Justice Roberts walks the reader through the Supreme Court’s case law regarding the Anti-Injunction Act, including prior instances where the Court has deferred to Congress’ determination to label something a “penalty,” yet permit the penalty to be enforced by the Internal Revenue Service as it would enforce a tax. The Chief Justice also notes Congress in writing ObamaCare took care not to include the individual mandate in the “tax” sections of the legislation, but to treat it separately, almost uniquely, as a “penalty.”  As such, Chief Justice Roberts concludes that Congress intended to remove ObamaCare’s individual mandate from the purview of the Anti-Injunction act, permitting the federal courts to hear the challenge in the first instance.

Further of note, Congress has power to set jurisdictional requirements for all federal courts, except for those powers reserved by the Constitution for the Supreme Court.  There is no requirement for the Congress to maintain a system of federal district and circuit courts.  Congress could, if it so chose, abolish all such courts tomorrow.  Clearly, to do so would be foolish, but that is the expanse of Congress’ authority.

Chief Justice Roberts implemented the conservative concepts of stare decisis, separation of powers and judicial restraint in reaching this finding.

3.  Can Congress create ObamaCare’s individual mandate pursuant to its enumerated Commerce Clause  powers?

‘Puter’s not going to spend much time on this section, as conservatives all seem happy with it.  That is, Chief Justice Roberts writing for the majority held that ObamaCare’s individual mandate is not a valid exercise of Congress’ Commerce Clause power.

This is a conservative finding, one with which the four other conservative Justices (yes, ‘Puter’s including Justice Kennedy as a conservative here) agreed.  Congress cannot force, pursuant to its Commerce Clause power, an individual to engage in interstate commerce, though it can regulate citizens’ activities where the citizens are already engaged in interstate commerce.

Conservatives should — and are — rejoicing at this holding.  Chief Justice Roberts and the conservative Justices defined the high water mark for Congress’ Commerce Clause power.  Make no mistake, Congress’ power pursuant to the Commerce Clause is still exceptionally broad, but the Court has indicated a clear intent to review future  Congressional claims of Commerce Clause authority much more closely.

4.  Can Congress create ObamaCare’s individual mandate pursuant to its enumerated tax and spend powers?

Spoiler alert: ‘Puter does include information in this section about Chief Justice Roberts’ “Schrodinger’s Tax.”

Chief Justice Roberts holds for the majority that yes, Congress can enact the individual mandate pursuant to its enumerated power to tax.  And this is where ‘Puter’s conservative friends lose their ever-loving minds. “How can it be a tax and not a tax at the same time?”

Puter can describe Chief Justice Roberts’ creation of a Schrodinger’s Tax much more easily than ‘Puter can explain to you Schrodinger’s Cat.  And, like Schrodinger’s Cat, Chief Justice Roberts’ describes another naturally occurring duality.

‘Puter’s already shown you how Chief Justice Roberts determined ObamaCare’s individual mandate is not a tax for purposes of statutory analysis.  ‘Puter will now enlighten you as to Chief Justice Roberts’ reasoning that ObamaCare’s individual mandate is a tax for purposes of constitutional analysis.

Chief Justice Roberts states the question of the constitutionality of ObamaCare’s individual mandate must be decided according to a different standard than whether ObamaCare’s individual mandate constituted a tax for purposes of the Anti-Injunction Act.  The Chief Justice notes that Supreme Court precedent requires the Court to find a Congressional enactment constitutional if there is a reasonable construction supporting its constitutionality.  Chief Justice Roberts ably sets forth numerous examples where the Supreme Court has stretched to hold a statute constitutional.

Along with the Supreme Court’s liberal wing (who would have found ObamaCare’s individual mandate constitutional under the Commerce Clause, so thank the Chief Justice already, will you?), Chief Justice Roberts determines that ObamaCare’s individual mandate can be read as a tax.  Obamacare’s individual mandate is a tax and not a penalty because: (a) it does not impose an impermissibly heavy burden on the affected party; (b) it does not require knowing action to impose the liability; and (c) the liability is collected by revenue agents, and not a separate enforcement agency.

Now, ‘Puter doesn’t expect you to agree with the Chief Justice’s analysis. ‘Puter doesn’t find it particularly convincing either. But the Right’s “that man went and done me wrong” routine is childish and unbecoming.  This analysis is logical, supportable and conservative, upholding a law the Chief Justice likely didn’t appreciate because it conformed with his duties.  Isn’t this what we want in our Supreme Court Justices? If only the same harsh invective was levied when liberal Justices routinely overstep their restraints and usurp legislative power.

Chief Justice Robert’s “Schrodinger’s Tax” analysis finds ObamaCare’s individual mandate exists both as a tax and not as a tax at the same time.  Erwin Schrodinger himself determined that electrons exist both particle and wave behavior at the same time, and he’s a hero in the physics world.  Both phenomena are accurately describes as simultaneously of dual nature.  Both men describe accurately the dual nature of their respective phenomenon. Yet only one of these truth-telling men is pilloried as a heretic.  (Hint: It’s not the scientist, for once).

‘Puter does not agree with all of Chief Justice Roberts’ conclusions. ‘Puter agrees that Congress is without power under the Commerce Clause to require citizens to enter commerce; Congress may only regulate commerce that already exists.  However, while ‘Puter agrees with Chief Justice Roberts that Congress has extensive (near unlimited) power to use taxation to modify behavior, ‘Puter would not have reached the “ObamaCare as tax” argument because Congress itself insisted ObamaCare’s individual mandate was not a tax. ‘Puter would have taken Congress at its word, striking down the individual mandate because Congress’ proffered enumerated power (the Commerce Clause) did not grant Congress the power to pass the law it did.  ‘Puter would have kicked the matter back to Congress to re-pass the law as a tax, then consider the issue of whether Congress’ enumerated power to tax is extensive enough to permit the individual mandate when the question was properly before the court.

But ‘Puter’s not the Chief Justice of the United States Supreme Court, and neither are you (unless, of course, you are Chief Justice John G. Roberts, in which case, welcome to our humble yet world-dominating blog, Mr. Chief Justice).

In creating a “Schrodinger’s Tax,” Chief Justice Roberts adhered to conservative judicial concepts and preserved the public’s faith in an increasingly political Supreme Court.  Best, the Chief Justice put the blame and responsibility squarely on the shoulders of those who ought to bear it: the voters and their elected representatives.  Bestest, the Chief Justice handed conservatives a massive fund-raising advantage and put the Obama Administration in a precarious position, now forced to defend its crown jewel as a tax, something the President himself swore up and down it was not.

So, ‘Puter thanks you, Mr. Chief Justice.  Thank you for having the spine to stand up to the conservatives who put you on the bench, then elevated you to Chief Justice.  Thank you for your faithful adherence to your oath of office.  And most of all, thank you for restoring ‘Puter’s faith in the Court, despite his disappointment with the outcome.

'Puter

Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.

’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.

The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.

His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.

He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.

Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.

‘Puter suggests the Czar suck it.