The “Umpire” Throws Out The Final Pitch

In his opening statement before the Senate at his confirmation hearing John Roberts said, “Judges are like umpires. Umpires don’t make the rules; they apply them.  The role of an umpire and a judge is critical. They make sure everybody plays by the rules. I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

But that was September 12, 2005; and he has forgotten that he is the umpire, not the pitcher.


Rewriting The Affordable Health Care Act

Under his leadership, five members of the Supreme Court today rewrote a piece of legislation so they could uphold it.

Nancy Pelosi said Congress had “to pass the bill so you can find out what’s in it, away from the fog of controversy.”  Mr. Justice Roberts does Ms. Pelosi one better: he read the bill, found out what was in it, didn’t like it, so he wrote it in.

The law says those who don’t purchase health insurance of the type approved by the government will be subject to a “penalty.” Justice Roberts simply erased the word “penalty” and inserted the word “tax” for the purpose of finding the legislation constitutional. The Court deconstructs the legislation just as they have been deconstructing the Constitution for the past century.

The sad consequence for us is that our Constitution will not be saved by the only branch of government whose sole constitutional purpose is to preserve it.


How to Make the Unconstitutional, Constitutional

The Affordable Health Care Act stated that when people don’t behave as the federal government tells them to behave they have to pay a “penalty.”  It is true that federal courts can impose financial penalties in courts of law when individuals or corporations violate federal law.

But this is different.  Now the Supreme Court finds out that the government can also impose a penalty on people when those people decide not to purchase something the government determines is good for them simply by changing the word “penalty” to the word “tax.”  Who knew?

By completely ignoring what Mr. Obama stated with public vehemence is clearly not a tax, does not qualify as a tax; that he would not support the legislation it if it was a tax, the Supreme Court blithely declares that despite what the legislation says, it is a tax.  Viola, the unconstitutional becomes constitutional.

Through the deceit of “the penalty that is actually a tax;” the Obama administration will now use the IRS to impose on the citizens a set of regulations that the citizens themselves oppose 2 to 1; they will do it with the conviction that unelected regulators know better than us what’s good for us; and they will do it with the blessing of the Supreme Court.  The word betrayal echos through my head.


More “Swarms of Officers”

We have been here before of course.  Speaking of King George, Jefferson wrote in the Declaration of Independence, “The history of the present King of Great Britain [our equivalent is the Democrat Party under Mr. Obama] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world…He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

The Affordable Health Care Act imposed entirely of Democrat Party votes and the Supreme Court is the largest tzx increase in the history of the world, requires 16,000 additional Internal Revenue Officers, tens of thousands of new federal employees to act as regulators, hundreds of new boards and commissions can fairly be called the Swarms of Officers full employment act.  And they will truly “harass our people and eat out their substance.”


How to Create a Benign Tyranny

Justice Roberts justifies the creation of our benign tyranny by writing, “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”  Of course, the legislation under question never uses the word “tax.”

He decided that his task was to work until he found – by some sleight of hand – a way to declare that the legislation was constitutional.  Justice is supposed to be blind, but not only did the Court pull off the blindfold, they put their fingers on the scale prior to deciding the constitutionality of the legislation.

He justified this madness by citing Hooper v. California, 155 U.S. 648, 657 (1895) writing,  “…the individ­ual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.” (Italics mine)  Then he quoted Hooper v. California, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

In further support of his decision to declare that a penalty is a “tax” he cites Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32. “[T]he question is whether it is “fairly possible” to inter­pret the mandate as imposing such a tax.”

The quote “fairly possible” from the case is from this sentence: “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible.”

Here is his reasoning: because of a Supreme Court decision in 1895 in the Hooper case, the court is obligated to explore “every reasonable construction, in order to save a statute from unconstitutionality,” and in addition in 1932, “even if a serious doubt of constitutionality is raised…this Court will first ascertain whether a construction of the statute is fairly possible.”

In other words, the Supreme Court began this case with their fingers on the scale.  They believed it was their task to use any means “fairly possible,” and “reasonable” to uphold the law.  They did not believe it was their task to evaluate the law in the light of the Constitution.  They take the law, and go shopping through the Constitution and other Court decisions to try to come up with anything that will “save the statute from unconstitutionality.”


The Umpire Replaces the Pitcher

Mr. Justice Roberts, the self-defined “umpire” began his deliberation with the disposition that if the government’s pitcher is down in the count 3 and 2, it is his job as Chief Justice to walk to the mound, relieve the faltering pitcher, and throw an impossible-to-hit strike.  Then return to his place behind the plate and call the batter “out!”

He clearly defined his job as finding some “fairly possible,” “reasonable,” way to find some way to “save the statute from unconstitutionality.”  And you wonder whatever happened to our Constitution.


What the Constitution Really Means

I only wish Justice Roberts had read more of Chief Justice John Marshall when he wrote the landmark case Marbury v. Madison 5 U.S. 137 in 1803.  The Roberts Supreme Court has accomplished exactly what Justice Marshall said would happen if the Court refuses to uphold the written Constitution:

“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.”

[If a legislature is permitted to exceed its defined and limited powers, the Constitution has no meaning.  If they are permitted to do so, “The distinction between a government with limited and unlimited powers is abolished…”]

“Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.”

[Permitting a legislature to exceed its constitutional confines means that the legislature has become omnipotent, and may legislate anything they want; the Constitution is abolished.]

“If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

[If the Supreme Court permits the legislature to exceed its constitutional confines, the Constitution is absurd.]


Let Them Cite a Defined Power

If Mr. Justice Roberts and cohorts can read the U.S. Constitution and find even the slightest intimation that the federal government may upon legislation passed by the Congress tax an individual for refusing to behave in a manner pleasing to the federal government, let them cite that “defined” power.

They cite nothing in the Constitution about government provided health care; they cite nothing about the Constitutional power of the legislature to tax people who do not behave as the government desires because it is not in the Constitution; is not a power of the legislature; and the Supreme Court’s decision to help them accomplish it looses an “unrestrained” legislature.

It is no longer the default position of the Court to look first at the Constitution and determine if it permits the legislature to do what it proposes to do.  Its default position is to look first at the legislation and see if they can find – by some means – to make the Constitution permit it.  This changes everything.

The United States government just became unexceptional; only one among all the others on earth where there is no transcending social compact by which the people’s document the Constitution – provides a limiting framework for government power. Today, the U.S. government became unrestrained; omnipotent; more powerful than the Constitution.  No individual right mentioned in the Bill of Rights should be considered safe because the Supreme Court deems its primary responsibility to find a way to construe any legislation as being  constitutional.  Obama rules.



In Justice Marshall’s words, “The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.”

The Supreme Court can no longer be expected to preserve the people’s document because the Roberts Court just abolished it.  For a century, the Court has betrayed the people granting ever more unconstitutional powers to the Legislative and Executive Branches of government through deceit and manipulation of  language.  They have nullified our Constitution in the process.

The Supreme Court has refused to save our Constitution; we will have to save it ourselves.  November 6, 2012 is our last chance to peaceably accomplish it.