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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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