John Roberts and the Commerce Clause (conclusion)

If you haven’t read the much shorter part i. John Roberts and the Commerce Clause, I suggest you do so now. I’ll wait.

Roberts at “Red Mass” – a rite to bless
judges and jurists that’s held right before
SCOTUS’ term each year , and has
its roots in the Middle Ages. 

We pick up with Ruth Bader Ginzburg, from yesterday [emphasis added]:

Instead, her opinion concurred with Roberts when he said that the individual mandate was within Congress’s power to tax—this was the Constitutional loophole he found—but rejected his view that it wasn’t valid under the Commerce Clause, which gives Congress the power to regulate commerce. Ginsburg wasn’t gentle. She wrote that Roberts’s analysis was “rigid,” “crabbed,” and “stunningly retrogressive,” that it “finds no home in the text of the Constitution or our decisions” and made “scant sense.” There was also a mesmerizing dissection of the broccoli question.  [The New Yorker]

ii. The Commerce Clause today and the Supreme Court yesterday morning …

And here is what I wrote on March 26th of this year:

… Clarence Thomas is on record as wanting to seriously modify the Commerce Clause, the Federal Government’s authority to regulate interstate commerce, the reason that Washington and Madison and Mason sat on Washington’s porch and contacted those who would eventually call for, get, write, campaign for and ratify a constitution. […]

And I fear that the Affordable Health Care Decision will be the Dred Scott of our age, and that tragedy will ensue. I don’t know what kind of tragedy, but it is in the air. To tinker with the interpretation of the Sacred Words of the “objective” Constitution, Clarence Thomas’ view might well push us off a cliff. There is no question that at least four Justices were chomping at the bit to hear this case, and I can make an educated guess as to which four.

In this case, the baby may literally be thrown out with the bathwater. Actual human lives will be irrevocably affected by whatever decision is effected. Things is bad.


And as the Learned Nine emerge,
robed in black and primly trussed;
we’ll hear their wisdom on display
and measure if they’re truly Just.

This is what I wrote on Guy Fawkes Day (November 5) 2010:

disasters looming that I fear have a very high probability of happening …  the Alter Boys of the Supreme Court will use the inevitable Health Care challenge to attack and cripple the Commerce Clause (and Clarence Thomas is on record as wanting to do so), which would wreak a roiling, rolling hell of “deregulation” (since if there is no regulatory power, there IS no regulation) that would wreak a havoc on any “rule of law” as neatly as Dred Scott inevitably plunged the States into Civil War by essentially deregulating slavery and destroying decades of compromises to keep THAT particular hell from breaking loose.

But this is what I wrote on March 22, 2010, and fleshes out the meat of this essay:

[* The following essay-within-an-essay can be skipped or extracted as an entirely independent Claus.]

[* Suddenly, the average American crank knows “more” about the Constitution than the Supreme Court: which may well be actually true. What is frightening — and I can safely claim to be the only commentator noticing this — is that the current Alter Boys‘ wing of SCOTUS very likely would LOVE to use this case to castrate sixty years of stare decis† on the “commerce clause” (Article I, Section 8, Clause 3) of the Constitution, which is the basis of nearly all federal regulation — particularly SAFETY regulation — in these United States. The Supreme Court itself explains:

… the Supreme Court’s opinion in Gonzales v. Raich, 545 U.S.1 (2005):
The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

But, the “originalist” position is to ignore all stare decis* and return to the “original” pre-industrial “constitution” of 1789, prior to virtually all the industrial and technological social reordering created by devices such as the railroad, the satellite, the telegraph, the telephone, video conferencing, radio, television, cable television, satellite television, High Definition television, stereo, wire recording, tape recording, digital recording, the internet, the automobile, the interstate highway …. etc. etc. etc.

[* Note 2012: A big chunk of the Citizens United decision is devoted to explaining why stare decis doesn’t apply, and is a mere inconvenience to the Alter Boys.]

[† Wikipedia: Stare decisis (Latin: [see original for pronunciation],  Anglicisation: [see original for pronunciation]) is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions. The words originate from the Latinphrase Stare decisis et non quieta movere, “Maintain what has been decided and do not alter that which has been established”.]

As the “commerce clause” article notes:

Other scholars, such as  Robert H. Bork and  Daniel E. Troy, argue that prior to 1887, the Commerce Clause was rarely invoked by Congress, and thus a broad interpretation of the word “commerce” was clearly never intended by the Founders. In support of this claim, they argue that the word “commerce”, as used in the  Constitutional Convention and the  Federalist Papers, can be substituted with either “trade” or “exchange” interchangeably while preserving the meaning of the statements. They also point to Madison‘s statement in an 1828 letter that the “Constitution vests in Congress expressly…’the power to regulate trade’.”

This would be a sea change in American life. We have yet to see the effects of the recent decision giving corporations unlimited ability to inject money into political races — handing the keys to the cheese factory to the mice, hiring the fox to guard the henhouse, relying on George W. Bush for rules of grammar and usage — but handing multi-national corporations (increasingly dismissive of the laws of sovereign nations) the ability to buy the politicians that will obey their dictates because of some originalist fantasy is incredibly, unbelievably irresponsible at this critical point in globalizing human society.  It is the triumph of ideology — spelling ‘idiot’ as ‘ideo’ — over reality. And, alas, this is the current crisis for humanity.

When your idea of the world trumps that actual REAL world, sooner or later, something has to give. You cannot bottle the world in a dictionary, and you cannot make laws for what you’d like people to BE, rather than what they actually are.

A victim of ideology

And, as I like to say, no matter how drunk you make God or how much you cheat, HE will win an arm-wrestling match EVERY TIME. (“God” obviously, meaning the Universe, the WORLD.)

The problem is that the Alter Boys seem to be “originalists.” You might recall that “originalist” Robert Bork and former Supreme Disgrace William Rehnquist convinced Barry Goldwater to vote AGAINST the Civil Rights Act and the Voting Rights Act because of ideological objections to the “constitutionality” of such laws, and Goldwater — who sincerly tried to be the great champion of individual rights and liberties — voted against remedying the stain of slavery that a Supreme Court had returned us to, by overturning the Civil Rights Act of 1875(pushed through by President Ulysses S. Grant). Because the “originalists” had convinced him that he MUST serve the Constitution, rather than fighting the Ku Klux Klan racism of the American South — and, as we learned in the 1970s in Boston and other Northern cities, the American NORTH.

Goldwater later called it “the worst decision of my life.”

1925, Washington, D.C.

Which neatly bookends President Eisenhower’s mirror statement that appointing Chief Justice Earl Warren (whose court overturned the toxic doctrine of “separate but equal” which justified the open apartheid of the American South in Brown v. Board of Education in 1954) was the worst decision he ever made as president — as opposed to the worst decision he ever made in his life, which was allowing Sen. Joe McCarthy to slander his former superior, West Point classmate and friend George C. Marshall as a “communist” and a “traitor” in his whistle-stop tour of McCarthy’s Wisconsin during the 1952 presidential campaign.

Ideology and opportunism creates some very ugly decisions by men we would otherwise admire. The Warren Court is remembered for its landmark decisions expanding the authority of the federal government to fight bigotry and institutionalized hatred, expanded the rights of the accused, and the rights of privacy (for example, the ruling striking down the abilities of states to criminalize humans’ rights to contraception, in 1965’s Griswold v. Connecticut. )

The Rehnquist Court enabled the second printing of such a ticket

The Rehnquist Court tried to “dial back” the commerce clause significantly (among all other “rights” seemingly):

In United States v. Lopez, the Court confronted conviction of a 12th Grade student for carrying a concealed handgun into school in violation of the Gun-Free School Zones Act of 1990 …  [ruling that]  the federal government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in Lopez. This was the first time in sixty years, since the conflict with President Roosevelt in 1936–37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress’s commerce power.  Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.

That’s Clarence’s wife Ginny, who works
openly to overturn the  Health Care Act
(and by ‘works’ I mean “salaried”) 

So, I fear that our Alter Boys will seize on the Health Care “mandate” to overturn as much of the commerce clause as has been interpreted since, say 1887.

As explained in United States v. Lopez, 514 U.S.549 (1995), “For nearly a century thereafter (that is, after Gibbons), the Court’s Commerce Clause decisions dealt but rarely with the extent of Congress’ power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce.

Scary how much that sounds like Robert Bork’s interpretation of the commerce clause. And Clarence Thomas’ concurrence in Lopez suggests that they’d like to go a long way towards returning to the states virtually unlimited powers to enact injustices no longer countered by the Constitution, but actually PROTECTED by their ideological interpretation of the Constitution.

Just think, in 1965, the year that I turned 10, 90 years of Supreme Court mischief were remedied by, in essence RE-enacting the non-discrimination Civil Rights Act of 1875, which it had negated.

Bad decisions can last a LONG, LONG time.

And the insane puritanism of Anthony Comstock —  who used to roam his Civil War camp correcting his fellow soldiers from drinking, swearing and playing cards, who later became America’s Czar of Vice, first as leader of the “New York Committee for the Suppression of Vice,” and later the Postal Inspector enforcing the “Comstock Law” prohibiting “obscene” materials from the U.S. Mails allowing him unlimited ability to read all Americans’ private mail — Comstock’s pandering love/hate of “obscenity” held on LONG past the 1965Griswold v. Connecticut decision overturning state’s “rights”  to prohibit its citizens from DECIDING whether or not sex ought to lead to (mandatory) pregnancy.

And that was for MARRIED couples! Bad Supreme Court decisions live forever. Bad Supreme Court Justices tend to live for too long.

DC Sexscandal Search

I fear that the Supreme Court will not merely overturn health care, but will overturn a century of precedent on the commerce clause. They’re already frothing at the mouth to do so.  The potential consequences don’t seem to matter to them.

Nor, in fact, the preamble to the Constitution, which they don’t evidence any awareness of:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty …

Today, we would call it a “mission statement.” But, as I have noted in essays from “Reality 101” and “Davy Crockett R.I.P.” to 1995’s “The Rush-ians Are Coming, The Rush-ians Are Coming“: WE MUST BASE OUR RESPONSE TO REALITY ON REALITY, AND NOT ON OUR IDEA OF REALITY. (And its corollary, The map is NOT the territory — language only describes reality, it does not EQUAL reality. And the other corollary: we must know the truth, because the truth is reality, and NOT living in reality is insane.)

But clearly, the Alter Boys don’t LIVE in reality. They have some vision of perfect ideology that trumps reality, and, thus, justice. At the present time, calling these five jurists “justices” is every bit the sham that a Cuban election is.

How the Alter Boys see themselves

So, yes, I DO fear what the Supreme Court will do with the health care bill every bit as much as what the ideologues, narrators and propagandists of the corporate-owned and, increasingly corporate-dictated media will do with the “debate.”

“We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”

— Robert Bork, criticizing the Warren Court

Those people weren’t yelling “nigger” and “faggot”  and “baby-killer” at members of Congress (the latter BY a member of Congress) because they were posing. They were genuinely, authentically fearful — all the way to screaming in public what they had previously reserved for conversations in private. (SeeHERE for more.)

Which brings us back to our main narrative .

[This ends the independent section. And remember: Buy Flibbertygibbets®! Flibbertygibbets™, made with actual flibberty made from the authentic tears of Christian® Patriots™!]

Back to the present.

There was a REASON that CNN and Faux Nooz™ got it wrong yesterday.

The first several pages (read at breakneck speed by the CNN and Faux Nooz reporters) seem to indicate that the individual mandate DOES NOT fall under the commerce clause. Here is the article I quoted at the beginning of yesterday’s essay:

CNN screws the pooch

Nevermind The Politics: Justice Roberts’ Bait-And-Switch Is Today’s Greatest Outrage
by Frances Martel | 5:57 pm, June 28th, 2012

The bold and blind confidence that we can, as individuals, do better than others at anything they may try their hand at is a uniquely American state of mind– one that went into overdrive this morning when major cable news networks got the Supreme Court’s decision on the Affordable Care Act exactly wrong. Most of the criticism– as most criticism usually does– came from many who had yet to read the full decision, and underestimated Justice Roberts’ ability to provide a twist ending so egregious it threatens to become the hallmark of his tenure as Chief Justice …

Networks had reason to believe this morning that Justice Roberts had actually acted to overrule the ACA– he gave them a good 40 pages of of it (the PDF of the entire Court decision is a totally manageable 193 pages). Dividing the issue into one of the Commerce Clause and one of the Necessary and Proper Clause, Justice Roberts takes the time to explain why interstate commerce has nothing to do with the individual mandate and why said legislation might be “necessary,” but not “proper.”

He follows that up with an explanation for why forcing people to purchase certain things or behave a certain way is not only unconstitutional, but unamerican:

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures– joined with the similar failures of others– can readily have a substantial effect on interstate commerce. Under the government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned.

Even before explaining his reasons for why the individual mandate is unconstitutional, Justice Roberts had to explain why the suit against the government was valid. And to do that, he needed to argue for several pages that a fine on those who do not purchase insurance is not a “tax” by definition. That’s because the Anti-Injunction Act, which forces those who intend to sue on an unfair tax to pay it and receive reimbursement later, doesn’t allow for suits on taxes that aren’t yet set in motion. The Anti-Injuction Tax doesn’t apply here, Justice Roberts ardently explained, because “there is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty.’” He notes that because Congress called the fine a “penalty” and called other things in the bill a “tax,” the Court is obligated to assume that they deliberately refused to call the fine a “tax,” as precedent dictates.

My illustration, not Mediaite’s

All of these arguments against the individual mandate are logical, valid, and on solid historical footing. So what happened?

The only answer Justice Roberts gives to why the Court ultimately ruled the way it did appears somewhere on the 39th page of the ruling– a sign any high school English teacher could tell you that the student started writing his essay with a completely different thesis in mind, and shifted gears halfway. The individual mandate, Justice Roberts concludes, is a tax after all, because some people say it is.

No, really, that’s it:

It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” […]

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

It is possible to twist the fine print into a pretzel and make it look like a tax, and that’s enough for Justice Roberts on Page 41, who is apparently a different person than Justice Roberts on Page 20. 

Right wing stalwart Charles Krauthammer makes the serpentine case on the National Review site, even as he finds Roberts’ decision bogus:

Krauthammer opines

Why Roberts Did It
He’s the custodian of the Court’s reputation.
By Charles Krauthammer
JUNE 28, 2012 4:30 P.M.

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the Court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.


How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory, and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.

As noted before: Suddenly, the average American crank knows “more”* about the Constitution than the Supreme Court.

[* as Ortega y Gasset described:

But the mass-man would feel himself lost if he accepted discussion, and instinctively repudiates the obligation of accepting that supreme authority lying outside himself. Hence the “new thing” in Europe is “to have done with discussions,” and detestation is expressed for all forms of intercommunication, which imply acceptance of objective standards, ranging from conversation to Parliament, and taking in science.

Kind of unoriginal when a dead Spaniard can describe your “new” con far more accurately than any of your contemporary critics can.]

The single salient point that every pundit, pandit and panderer seems to have missed in this is that John Roberts is not a political moron. To explicitly shift the fine for non-compliance into a “tax” has definite politcal consequences that no one not in a vegetative state or coma ought to understand in the Norquistian Dogma of the Right Wing: TAX is a dirty word. A political word.

Republicans descend on Frankenstein’s castle to discuss tax policy

He might have noticed that the “framers” including President George Washington HAD used a non-commercial mandate before,  in The Militia Act of 1792 (Passed May 8, 1792, and signed by George Washington, president from April 30, 1789 – March 4, 1797):

Here is the actual language of the Act:

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder…

Gee. That sure sounds like a mandate forcing citizens to BUY stuff from private vendors. And if “original intent” is the Scalia/Thomas notion of the Constitution, it is clear that the “framers” had no problem with such a Federal Mandate, including George Washington himself. I could do a whole Cooper Union speech here, but you take my point.

The sophist might argue that it’s not an exact parallel, but it’s actually a pretty exact parallel: for the “health” of the nation, citizens are required to purchase pricey consumer goods. In this case, it’s to protect against invasion and rebellion; in our present case, it’s to fight DEATH itself, a/k/a disease and accident that require health care.

There is a REASON that most legal scholars thought the commerce clause pretty clearly covered the health care mandate. But clever John dislikes that notion (thank goodness he wasn’t on the court in 1792).  And so he makes a nakedly political decision to “protect the reputation” of HIS Court, and toss the poison pill into the fall election campaign. Take out Obama and the Democrats and you take out health care. And, a generation of morons believe that taxes are inherently bad — a notion never accepted by any preceding generation.  Even Ronnie Reagan (who had Grover Norquist start his astroturf group IN the West Wing of the White House) raised taxes several times to save a tanking economy. (You might recall that when 2008 and 2009 unemployment figures were cited, they were the “worst since 1984” without noticing WHO was president in 1984).

John Roberts intentionally handed a truncheon to the Republican campaign for the fall, and thought no one would notice.

I have known a lot of MENSA types, and John Roberts, Bill Gates and I were all National Merit Scholars in the same year, so I might have some small grounds for my observed conclusion: the curse of the “smart” guys and gals is that they almost invariably overestimate their own smarts — not a particularly smart notion in itself. Having been surrounded almost always by persons not as smart as themselves, they fall into the trap of believing that NO ONE is as smart as they are. (I call this “the curse of the 120 IQ.”) Intellectual humility is the only defense for this syndrome, but is not much in evidence among the MENSA set. Nor from Roberts or Scalia.

Roberts seemingly concluded that he could cleverly foist this abomination off on the body politic as a cure-all remedy, when it’s actually the judicial equivalent of syphilis, guaranteed to fester and destroy in the long run, while only producing mild, painless chancres in the short term.

And that’s where he’s been too clever by half.

Rather than “reinstating” the reputation of the Court, he’s merely reaffirmed its status as the most vile and poisonous national disgrace since Roger Taney (pronounced TAW-nee) and his “Dred Scott” court.

No one ought to misunderstand that John Roberts intentionally and malevolently rationalized his way into the politically advantageous conclusion that the health care mandate was a TAX, and declared it AS such — a fact that it only took about half an hour for the flying monkeys of the rightie talking points meme machine to pick up on.

You’ll see a lot more of this in the next few months. I GUARANTEE it. Just as I GUARANTEE that John Roberts was utterly aware of the implications of this legal weaseling.

And so we listen as the rubes praise this deceiver, this “nonpolitical” jurist, who decided that the best way to take out the President of the United States of America was to take out the precedent of the United States of America.

But now you know better.



A writer, published author, novelist, literary critic and political observer for a quarter of a quarter-century more than a quarter-century, Hart Williams has lived in the American West for his entire life. Having grown up in Wyoming, Kansas and New Mexico, a survivor of Texas and a veteran of Hollywood, Mr. Williams currently lives in Oregon, along with an astonishing amount of pollen. He has a lively blog His Vorpal Sword. This is cross-posted from his blog

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About Hart Williams

Mr. Williams grew up in Wyoming, Nebraska, Kansas and New Mexico. He lived in Hollywood, California for many years. He has been published in The Washington Post, The Kansas City Star, The Santa Fe Sun, The Los Angeles Free Press, Oui Magazine, New West, and many, many more. A published novelist and a filmed screenwriter, Mr. Williams eschews the decadence of Hollywood for the simple, wholesome goodness of the plain, honest people of the land. He enjoys Luis Buñuel documentaries immensely.
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