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The Emperor Has No Robes

Posted By Daniel Flynn On July 3, 2012 @ 12:40 am In Daily Mailer,FrontPage | 21 Comments

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.

Taking power often means leaving principle. The noble idealism one utters on the outside becomes quaint sentimentalism once inside. Power shifts the perceptions of not just the listeners but the speakers.

In 2005, Senator Barack Obama justified voting against the confirmation of Roberts to the Supreme Court by opining that the George W. Bush-nominee “has far more often used his formidable skills on behalf of the strong in opposition to the weak.” The chief justice siding with the federal government’s bullying of individuals into buying health insurance from massive companies meshes with Senator Obama’s portrayal. But now that Obama is president, his opinions—on John Roberts and on judges siding with the small over the big—has necessarily changed.

Who believes that punishing the uninsured with a fine paid to the IRS empowers the powerless?

“I will be voting against John Roberts’ nomination,” Obama announced in 2005. “I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes.”

Roberts turned out to be everything Senator Obama feared that he would be. And President Obama is just fine with that.

Barack Obama is no longer a junior senator in the minority but the president of the United States. He has warmed up to “majoritarian impulses” and “the strong.” His power has shifted his perception just as our perception of words shift when their author wears a black robe like Roberts (or military garb like Esposito). 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. They shouldn’t obey the lawyers. If John Roberts is free to disagree with John Roberts about whether the individual mandate constitutes a tax, then Americans are certainly free to disagree with John Roberts, too.

The grade-school children of San Marcos didn’t turn sixteen en masse because their bearded leader decreed it. The Patient Protection and Affordable Care Act isn’t constitutional because John Roberts says it is.

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