The Emperor Has No Robes

Daniel J. Flynn is the author of numerous books, including "Blue Collar Intellectuals: When the Enlightened and the Everyman Elevated America," now available from ISI Books. Read Daniel's blog at www.flynnfiles.com.


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In Woody Allen’s 1971 film Bananas, wimpy American “Fielding Melish” comically discovers the day after the revolution that he has been projecting his fantasies upon the Latin American revolutionary leader he serves. “From this day on, the official language of San Marcos will be Swedish,” the Castroish “Esposito” imperiously announces upon seizing power. “Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old.”

There is a Bananas quality to John Roberts’ NFIB v. Sebelius decision. The verbal contortions required to hold that Congress really didn’t mean it when the body called the individual mandate a penalty and not a tax—but that for Anti-Injunction Act purposes Congress did mean it when it called the individual mandate a penalty and not a tax—would be laughable if maintained by anyone but the chief justice of the United States Supreme Court.

Logic 101: “A” is “A.” Lawyer 101: “A” is whatever a judge says it is. Thursday’s opinion is a sky-is-green pronouncement.

John Roberts dismissed Anti-Injunction Act restrictions on hearing tax cases in which the money has not been collected by claiming that the mandate isn’t a tax. “There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a penalty,” he writes. Then, in devising a Constitutional rationalization for the expansive law that runs afoul of the Commerce Clause, Roberts rules that the mandate “looks like a tax in many respects.” So here it becomes a tax.

The chief justice’s rationalizations apparently became so offensive to several of his colleagues that they ceased discussing it with him sometime after he changed his mind on the mandate. The cold shoulder even made its way into the dissent. “They deliberately ignored Roberts’ decision,” Jan Crawford reports at CBS News, “as if they were no longer even willing to engage with him in debate.” There is something inherently unreasonable about reasoning with the unreasonable. This applies to madmen like Bananas’ Esposito as well as sophists like the High Court’s Roberts. One becomes a participant in farce when one engages with someone acting in bad faith as though they act in good faith. One gets the impression that Justices Scalia, Thomas, and Alito’s rebuff of Roberts involved avoiding the indignity of arguing with sophistries.

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  • Lady_Dr

    AGREED! IT isn't Constitutional. And if this is Constitutional – what about the fact that it (as well as the depts. of HHS, Agriculture, Education, Interior, and whole lot of other things in,coming out of, Washington) are a DIRECT VIOLATION OF THE 10th AMENDMENT.

    Let Massachusetts have a state health care program – but the rest of us don't want it. If we thought it was so great the polls would not show a steady increase in the number of people who want Obamacare repealed – totally.

    • Sage on the Stage

      …and there are at present, 26 states that are going to opt out of Obamacare.

      • fiddler

        And as such it is no longer "national" healthcare.

  • oldtimer

    If the only reason this law is constitutional is because it is a tax, and the dems, obama, pelosi, etc. insist it is not a tax but a penalty, than ,are they not stating therefore that the law is unconstitutional…

  • WildJew

    I like watching Bill O'Reilly's "Talking Points" the following morning on the Internet. http://www.foxnews.com/on-air/oreilly/index.html

    Last night's segment was "Should Conservatives despise John Roberts?" I am offended by the implication of O'Reilly's question as well as the emphasis he puts on the word despise, inferring conservatives are a petty, small-minded, bigoted lot. Like a school teacher lecturing recalcitrant children O'Reilly explains why we shouldn't despise John Roberts and why Robert's ruling maintaining the legality of Obamacare was actually a "conservative" decision which avoided judicial activism, which means making laws from the bench. O'Reilly added, "right-leaning Americans HATE that!"

    "Roberts," according to O'Reilly, "did not want to strike down a law passed by Congress so he searched for a way not to strike Obamacare down. It was a tough go for Roberts…." O'Reilly acknowledges Roberts gave enormous power to the Federal government and the IRS, which can now force us to do something we may not want to do; that is, buy health insurance.

    I do not despise Roberts. Like Brent Bozell (Media Research Center), I consider Roberts a traitor to his (professed) philosophy. I consider Roberts faithless and a man who lacks integrity. Striking down bad (over-reaching, perhaps unconstitutional legislation) is one of the reasons why we have a High Court. That O'Reilly can make the case Robert's ruling is conservative is perplexing.

    • Sage on the Stage

      Am in agreement with your points above; however, I'm wondering if there might be a way to set aside the SCOTUS vote. For what its worth, for several days there has been, on Michael Savage's web site, the story of judge Roberts' seizures, and use of anti-seizure medication, which blurs logical thought processes. And by the way, O'Reilly isn't considered a true conservative by many…Big Bill is basically a showman…he'll do most anything for ratings.

      • WildJew

        I've been watching / listening to O'Reilly over the years. I agree with you, he is not a conservative.

        I have listened to Savage on the radio most evenings here in my area where he is syndicated for many years now. I appreciate his passion (anger) and his political independence. He is not a partisan Republican but a self-professed independent conservative. I like that.

        There are times when he says things that really irritate me, especially when it comes to Israel and his own Jewish faith. Last night he told his audience, he hates cats. I like cats. Nor do I agree with Savage's obsession with drug use. Savage himself admittedly consumes wine and beer but everyone else is either a drunk or an alcoholic. To Savage most leftists are drug addicts and that is why they have such an irrational worldview.

        I don't buy it. Neither to I excuse Roberts for his ruling based on Savage's theory that he has health problems (seizures) and is addicted to drugs. That is a cop out to me.

        Roberts did what he did because he feared the onslaught from leftists, especially in the media. I suspect Roberts is consumed with concerns over his image within the liberal media, intelligentsia, the fashionable social class, etc. It is the measure of a man who fears his fellow man more than he fears the Almighty and doing the right thing. Every time a leftist or a traitor on the right does something outrageous, to Savage they are either puppets to the NWO, the Bilderbergs, or they are drug addicts. How about they are moral cowards? All that having been said, Savage is worth listening to for the things in which we agree.

        • fiddler

          This is why the liberal media needs to be repudiated for the what they see themselves as: the "4th branch of government".

          Conservatives will always be characterized as "extremists" by the left. That is what they truely believe. It is not to far afield from how propagandist Joseph Goebbels spoke of Jews. He wanted to sway popular opinion against them (and that is putting it very very lightly). The leftist media does the same. They somehow have positioned themselves in the elitist moral throne and are able to dismiss a whole class of people (e.g. Tea Partiers) as no-nothing rabble. They can decide for themselves what is news and what is not, blindly believing that President Obama is infallible. They have never believed what the Declaration of Independence and Constitution state about the source of our rights, and they certainly don't believe in consent of the governed. No, they know best.

          It is time they were exposed as the partisan hacks they are. Time for a little humility to come their way.

    • scum

      Uh, so you DO despise Roberts…

  • WildJew

    I wonder why Republican presidents have such a difficult time nominating reliable conservatives like apparently Scalia and Thomas are. Why did George W. Bush nominate John Roberts? Roberts only served two years as a Circuit Court judge. Yesterday I read, he had virtually no paper trail. On what basis did Bush believe Roberts was a conservative who would not legislate from the bench?

    • scum

      Ah, so only now you question the infinite wisdom of the Bush-in-Chief. It boggles the mind.

      • WildJew

        Only now? You obviously have not been reading my posts on this site for the past several years.

    • Reason_For_Life

      If a judge shows a propensity for ruling against the government and overturning bad laws because they are unconstitutional he scares politicians by threatening their power. Roberts was chosen because the then majority Republican congress and president didn't want to have their legislative agenda stymied by the courts.

      I read some of Roberts' testimony during his confirmation hearings where he was questioned about "stare decisis" and "judicial restraint". Roberts made it pretty clear that he would not be inclined to overturn laws on constitutional grounds unless the law blatantly flaunted the constitution. This looks pretty good to those in power but they tend to forget what happens when the other side gains control of the legislature. Republicans wanted to protect the Patriot Act and the Defense of Marriage Act. What they "protected" was ObamaCare.

      I certainly didn't see this perverted decision coming because I thought that law was so obviously unconstitutional. It was only when I asked myself "How could this happen?" that I saw in Roberts' testimony the seeds of what grew into the awful verdict we suffered last week.

      • WildJew

        You mention Roberts' testimony. I listened to some of it. I am pretty sure, like many nominees Roberts gave "weasel" answers to questions about Roe v. Wade which most sane people believe to be a very shoddy ruling.

        You acknowledge Obamacare blatantly flaunts the Constitution. Four of the Justices (including the moderate Kennedy) found that it violated the Constitution. Even if one is not certain that it does, a cursory reading of the history of America's founders and their intent would tell you all you need to know about their view of a limited role of government.

        Why didn't Roberts go with the four dissenters since that is why we have a High Court? To rule unconstitutional and bad law unconstitutional? I suspect this has more to do with Roberts desire to be loved by the liberal elite social class than it does about Constitutional law or the role of a judge. Don't you?

  • marios

    I read that Bill Clinton knew that BHO was not born in US and could not be elected as Pres in 2008 and he was going to reveal it. BHO accomplices intimidated him that his daughter Chelsea would be in danger. Bill gave up.
    I think that J. Roberts was intimidated as well. No more rational explanation for his votes in Arizona case and obamacare. This administration is able to do everything to keep power. BHO is eastern type of dictator who if being reelected will transform country to 3rd world type of country as he promised to ex-pres Russia few month ago.
    bill O'Reily is flip-flopper and snobbish coward. Shawn Hannity is the best on Fox news I think.
    .

    • scum

      Don't worry, we've long been headed toward Third World status. Shipping jobs overseas and tax breaks for the super-wealthy have turned a once-viable nation into a failed state. Go to Wal-Mart for the evidence, or better yet, watch the viral video "The People of Wal-Mart."

      • fiddler

        Have you EVER worked for a union? Do you care about competing in a free market? Do you see the tension bewteen turning a profit (which fuels R&D and future growth), and ever-constraining regulations? Do you see the disparity between surviving in the marketplace versus, mandating that taxes be paid (or else the IRS comes knocking at your door).

        Does govermnet BUILD anything?

  • Willy Rho

    The Constitution Article I, Section 9, Clause 4; States No Capitation or other direct Tax shall be laid, [unless in Proportion to the Census or Enumeration herein before directed to be taken].
    Only the Income Tax is excluded by the 16th Amendment. The whole tax system of the USA income tax is based on Lies and Deception. All other USA taxes are placed under the "Shell" of the Income Tax when they have nothing to do with Income.

    The answer to all the Government Manipulation of its Citizens by taxation is to first Repeal the 17th Amendment. After that power is consolidated, eliminate the 16th Amendment, after that power is consolidated, eliminate the Civil War Relic, the 14th Amendment. From there into the future, the Federal Government is under Citizen/State control.

    Of course, this will never happen, because the Government will Print Fiat money to pay off the Government Class and Bribe their Friends and Muer Duer their Enemies. Just like the Chicago Mob does. Or the Mexican Drug Cartels, or the Moo Slim Oil barons. The above list is the list of the enemies of Liberty.

  • Willy Rho

    John Roberts just went from the side that Loves Liberty to the side that Loves Socialist Slavery. As some have noted, Bill Clinton knew of Obama's ineligibility and considered pushing the revelation. But, when they(Chicago Mob) threatened Chelsea, he caved and shut up. The SCOTUS has refused to hear at least 20 cases on Obama's lack of eligibility. With Trillions and Trillions of Fiat Dollars involved, the Mob can offer Gold or Lead, you know the meaning of that in Mob Speak, If almost anyone was offered 20 Billion dollars and an Island in the Caribbean or kill him and all of his Family, what would a really thinking man do, would he change his mind and become a Traitor; yes he did.

  • Western Spirit

    The Constitution is written so the average person can understand it. To watch it being twisted into a pretzel by the Supreme Court is a marvel to behold.

    It's plain language has been so abused by people who have allowed power to overshadow common sense it boggles the mind and reminds us once again that intelligence without principles is a dangerous thing. And principles are determined by actions not words.

  • fiddler

    This is why NO LAWYERS should be elected to public office! Since the "know the law", they know how to skirt the law or to contort it into an unrecognizable mess.

    Just look at John Edwards. How nice for him that he got a mistrial. Happy birthday.

  • barrelbender

    "Words that sentence a speaker to the loony bin become commands to be obeyed when the speaker possesses power but not rationality."

    "The chief justice may have changed his mind. The Constitution didn’t change its meaning. Citizens should obey the law."

    The irrationality of the SCOTUS decision and the blatant illegal power grab of legistating from the bench certainly qualifies as "bad behavior".

    Federal judges do not have “lifetime appointments”. They serve during “good Behaviour” only (Art. III, §1). The constitutional remedy for usurping federal judges is impeachment, trial, conviction & removal. Federalist No. 81 (8th para), A. Hamilton. Non-negotiable – period – our congressional employees should be all over this like flies on a pile of sugar.