Chief Justice Roberts: What in the heck was he thinking?

Since the Supreme Court ruled Obamacare was Constitutional under Congress? broad taxing authority, I struggled to understand how Roberts in particular could deem it allowed to tax someone for failing to do something (in this case buy insurance but it could also being applied to failing to exercise or buy broccoli). It just seemed to be contrary to much of what I thought Roberts stood for. So, when I think something doesn?t make sense, I usually say there is something I don?t know and try to find out what I?m missing.

So, what am I missing? As I reflected last night, something dawned on me. It is Robert?s formation as a person. Formation affects everybody- in what we do and don?t do, what we think and don?t think. I?ve heard it said the word most used in the Constitution is ?person.? I don?t know if it is true explicitly as I haven?t counted but it certainly is true implicitly.

And, if I?m right (I certainly could be wrong and I?m sure there is going to be a lot of psychoanalysis of Robert?s mind over the next few weeks), liberals may want hesitate in their praise Roberts. They might like this outcome but they might want to take pause because the Commerce Clause and Medicaid portion will greatly affect going forward the power of the Federal Government. For the same reasons, conservatives should temper their reaction.

I think it will explain his vote on Citizen?s vs. United which gave the right of corporations to make political contributions and his vote on the Arizona immigration law, it will explain his future vote on the religious liberty of religious entities not to cooperate directly or indirectly with contraception. In short, it will affect everything.

I apologize for the length.  I tried to figure out how to upload a Word document you could link to but couldn’t.  So, with that, here goes.

John Roberts is a Catholic.  I don?t know if he is an orthodox, practicing Catholic, one who goes to Church (often or seldom) but has a permissive view of what teachings he must hold, one who has a weak faith or one with no faith at all.

On the left, I see it Larry Kurtz (known here at SDWC as IP) who I suspect was raised
Catholic but has no faith, Bill Fleming (who I pray gets reconciled with the Church), and Nick Nemec who is practicing.  On the right, I see it Sibby who has left the Church, I see it in ?Aldo? who posts more often at Madville and on Mt. Blogmore, and I of course see it my
broken self.

Before I go on, I want to stress this is not a comment on religion being imposed on others.  Kurtz has no desire to force Catholicism on anyone anymore than I do.  This is a statement on how formation affects a person.  And the effect of Robert?s Catholicism on his formation is no less legitimate than one formed in an atheist home.  It is what it is.  And, in America every person gets to bring his/her whole self to the public square.  I?m just trying to shed light on Robert?s mind and how he could tax a person for failing to do something (vs. all other taxes are paid on something one does directly) and also why he ruled as he did on the Commerce Clause and Medicaid mandate on the states.

So what is this common thread that crosses political ideology and even to the degree they
practice their faith?  By the way, if what I about to say offends my non-Catholic Christians, I don?t mean to.  I?m trying to explain how Catholic?s see things.  Nothing is meant to imply you may not have the same view.

First, you find it in the words of the general confession of sins said at Mass where it says: ?I have greatly sinned, in my thoughts and in my words, in what I have done and in what I have failed to do, through my fault, through my fault, through my most grievous fault.?

Notice the ?what I have failed to do.?  Catholics soon learn by what is explicitly said and what is implied, failing to do good is just as sinful as doing something bad, and sometimes worse.  In fact, anyone who has gone to Confession will know often the Priest will focus less on the penitent?s confession of ?yelling at my wife? and more at the lack of action of loving your wife.  Or, a confession one used the company credit card to fill up the tank of gas (stealing) may get less focus than the reality one isn?t giving a fair and honest effort at work every day in exchange for their pay check.

It is this perspective that could have led Roberts to find failing to act (buy insurance) as actually an act, and thus legitimate to tax.  Larry Kurtz might get this.  His most critical and usually poignant posts aren?t when he is commenting on something someone did but on the failure to do something.

Second, understanding of the Catholic concept of the ?Body of Christ.? One doesn?t have to believe in Christ to get this concept and I?m not talking about the Eucharist or depending on a super-natural connection of all persons joined mystically to each other by being made in the Image of God.

Catholics do not accept there are ever ?victimless? sins or crimes.  Nothing a person does even in the privacy of their own home doesn?t have an effect on the greater whole.  At the same time, it allows one to see how the collective group of persons (a corporation) to have free speech rights to be as worthy of protection as the speech of individuals (ala Citizen?s vs. United).  For me to explain this and make sense, I?d have to right at least a chapter.
What I?d like to you just get in your mind is the idea is limiting the rights of a collection of individuals also limits the rights of individuals.

Third, understanding of the Catholic concept of God?s permissive will. While God doesn?t desire us to do evil, he allows it out of love and respect for our free will.  For instance, while He never desired a drug abuser to use drugs, God can use the past sin to do good when the person becomes a drug-abuse counselor.  When you read the end of Robert?s ruling, you can see clearly he finds Obamacare bad policy.  But out of respect to the democratic process, he doesn?t see his job to stop Congress and the President from doing harm (ala using drugs).  Since he sees Congress? authority to tax as broad, had a broad understanding of what is taxable (do and fail to do), he deemed he must strictly interpret the Constitution and allow even what he deems harmful.

Fourth (and final only for the sake of brevity as I could go on), understanding the Catholic concept of subsidiarity. Subsidiarity is an organizing stating that matters ought to be handled by the smallest, lowest, or least centralized competent authority.  If the family is capable of dealing with the problem, government has no role.  If
state government can handle it, the federal government should stand back.

I think this influenced the Medicaid decision, leaving it to the States to determine who is eligible for social aid, how to pay for it, and who pays for it as well as the narrowing of the power of the Commerce Clause.

FINAL COMMENT: Don?t get me wrong.  I do not agree with this ruling.  I believe Robert?s application of ?failed to do? is a step too far under our Constitution.  While wholly consistent with private behavior, I do not think it applies to government authority to tax a failure to act, no matter how good the intentions (provide health insurance to all).  While I also disagree with a single-payer health insurance policy, I believe it is more respectful of the Constitutional concepts of individual liberty while taxing it violates individual liberty.

At the same time, if I got into Robert?s head, while this conservative and all conservatives abhor this decision, I think we will applaud while liberals lament the precedent on the Medicaid provision and Commerce Clause.

There is a saying: ?Be careful what you wish for.?  If this ruling leads to Obama?s defeat and the repeal of Obamacare, as a result of this ruling, America will have a significantly weaker federal government less able to regulate and socially engineer society.  And, the people will have effectively overturned this ill-advised legislation and policy.

29 Replies to “Chief Justice Roberts: What in the heck was he thinking?”

  1. MC Post author

    Troy, I can’t help myself but to wonder if this ruling will help us.

    When the bill was passed into law, conservatives united, and elected conservatives to take back the House.

    Could this ruling be the catalyst we need to people off the sidelines and in to the battle?

  2. Katzy

    I hope that every person opposed to Obamacare and the overreach of the federal govt reads your final paragraph and acts loudly and forcefully on it. This whole issue has never been solely about medical care; it is more importantly the infringement on our liberties by an oppressive fed govt. And if this is allowed to stand, Benjamin Franklin said the founders gave us a “republic, if you can keep it.” And this is the time to test that statement. The alternative is not pretty.

  3. Katzy

    I hope that every person opposed to Obamacare and the overreach of the federal govt reads your final paragraph and acts loudly and forcefully on it. This whole issue has never been solely about medical care; it is more importantly the infringement on our liberties by an oppressive fed govt. Benjamin Franklin said the founders gave us a “republic, if you can keep it.” And this is the time to test that statement. The alternative is not pretty.

  4. Job Creator

    Troy, thanks for this insightful post. You and other conservative commentators are digging deep, trying to find a reason.

    Might I suggest that Chief Justice Roberts looked at the entire impact and did what he thought was the most pragmatic thing? It was not based on politics or epilepsy medication. Perhaps just pragmatism.

    Look, the government compels us to act in a certain ways every time we turn around. Just this morning I was forced to drive on a government roadway. The required me to have license plates on my car and insurance. I could be fined for either of those things – or taxed – whichever term you prefer.

    I can’t figure out this mandate thing. It was not long ago that Republicans in Congress were supporting something similar, except calling it “personal responsibility.” I really don’t know how we address the deadbeat problem. All I can tell you is that I am sick and tired to paying 50% of my health insurance premiums for the cost shifting that medical providers have to do to make up for the costs of those who choose not to insure themselves, but still consume health care.

    I would welcome your solution to that personal responsibility issue. And if it makes sense, I will support it wholeheartedly. I’m sure that you will provide real solutions and not some of the bumper sticker rhetoric we see in here.

    Two comments: First, if it was pragmatism, Roberts did not do his job. His job is to interpret the law. Period. Regarding a solution, the GOP has a plan for pre-existing conditions, cost containment, and cheaper and broader access to health care insurance and health care itself. Obama just wouldn’t listen.

    1. MC Post author

      It boils down to dollars and (common) sense.

      Most everyone knows (at least they should know) that preventive care is much cheaper and easier than treatment for an ailment. However the same people who can’t afford insurance for treatment also can’t afford preventive care. These people wait until the symptoms are so bad they require advanced (more expensive) treatment.

      The question I have, is how do we get preventative care, at reasonable cost, to the people who need it most?

    2. Job Creator

      Of course, Troy, both of us are not so naive to think that every single SCOTUS decision ever handed down had only to do with hard interpretation of the Constitution. Comee on.

      Second, can you explain to me the goodness of the House bill? As I recall, they added so many riders that didn’t even have anything to do with health insurance or health care that it didn’t resemble a health care bill.

      PLEASE – tell me what their idea is. And do you agree with all of it.

      Let’s repeal it and start over. Republicans and Democrats sitting together. Major legislation requires broad support from both parties and the entire public.

      1. Job Creator

        Not idea, specifics please. How do they handle sick people getting kicked off their health coverage? How do they handle pre-existing conditions? How do they contain costs? How do they eliminate the cost shifting that is costing the rest of us 50% higher health insurance premiums? How do they deliver care to those who are in the lower income range that still do not qualify for Medicaid?

        Is it just more of “Every Man For Himself?”
        I’ve detailed it many times on here. And, everytime it was Obamacare or nothing. So, be it. We will repeal and then Dems have to talk.

      2. Job Creator

        Let?s repeal it and start over. Republicans and Democrats sitting together. Major legislation requires broad support from both parties and the entire public.

        That’s a brilliant idea and I could not agree with it more, but don’t you think it’s a bit Pollyannish at this point – especially since your side just lost?

        Haha…when was the last time the Republicans acted like they were willing to compromise on anything. Remember the last time they were asked to do that? Our credit rating got hammered and the Dow lost 18.7%.

        And right now the Democrats have prevailed. People are starting to look at the Affordable Care Act with more open minds since the SCOTUS has legitimized it and ruled it Constitutional.

        Given the juvenile crap that the Dems have had to put up with for the past three years in the Senate and the last two in the House, why would they give one centimeter?

        Just as I expected. We will just have an election. You run on Obamacare. We’ll run against it. No problem.

        1. Job Creator

          For the dogmatic base you have, that will be enough. For the Independents who are going to decide the contest, you are going to have to actually put forward alternatives. And so far I have not seen anything that Cantor has put forward that will trump the Affordable Care Act. All he has is the Every Man For Himself ideas. That’s good enough for the hard right but I do no think it will persuade the thinkers.

          Troy, I have been an advocate of letting the Republicans have everything they want. They will either save the country like they are so sure they can do – OR screw everything up even more. Either way, America wins. Either the country is saved by the Republicans or the will be kicked out of power for the next forty years. I say let ’em have what they want and let it roll!

          I could use more tax cuts. And I bet you could, too.

    1. Bree S.

      He wouldn’t have to vote for the thing if the drooling idiots at the top hadn’t picked the wrong horse yet again. Romney polls so poorly against Obama that the Republicans can’t afford to give him any talking points.

      The problem is the establishment. Let me clarify – the incredibly stupid establishment.

  5. Anonymous


  6. Bill Fleming

    Troy, interesting take on the Catholic stuff. But I don’t think you really need to dig that deep. People get taxed on things they don’t buy or use all the time. It’s like paying for firemen or policemen. If you get in an accident or have a heart attack and don’t have insurance, you still get a ride to the hospital and get medical care, because that’s the way we Americans want our society to be, Catholic or whatever.

    Bill, I have to dig that deep because otherwise it doesn’t make sense. Your analogy is incorrect.

    We can tax the public for the common good either broadly (income/sales tax) or via a user tax (gas tax). But, now we have the power to tax a person if they don’t buy a health club membership or don’t do anything else deemed in the “public interest.” Penalize/tax a person who shows up for health care without insurance or cash and then it is a user tax. But this is neither and without some thought, is nonsense.

    1. Bill Fleming

      If you insist, Troy. But the fire department will put out the fire at your house regardless, and there is no separate tax for it. I don’t see the difference, except that there is no separate, private option for fire department services. i.e. perhaps it’s “private insurance” that’s the problem. Try thinking of it from that angle.

      you are making the single payer argument which applies to your fire truck analogy.

      1. Katzy

        Wrong,BIll. The fire department will not put out the fire in your house if a person does not pay the tax or whatever some communities have. There have been examples not too long ago.

        1. Bill Fleming

          Most would consider that immoral, Katzy. I would. I bet Troy would too. If a government isn’t there to serve and protect people, why have one?

          1. Les

            On March 15th, the Miles City fire dept opted not to fight the fire at a daycare providers home claiming it rural as it sits on the border of city and rural leaving a rural volunteer dept to deal with the situation.

            Sascha Marie Waldo age 5 and her 4 year old buddy visiting from Fargo both perished in that fire. The family asked for punishment for the day care provider which was given, but the manned city fire dept was held harmless although it was well know there were internal issues behind the decision.

            As to your poem on sin by inaction, I have always believed my tears when I meet my maker, will be more for what I have failed to do than the than the actions of just another average sinner.

              1. Bill Fleming

                “When my life is over and I stand before the father, the sisters of the sun are gonna rock me on the water.” ? Jackson Browne

      2. Bill Fleming

        Yes, I am. I think we already have Universal health care, Troy. Just the most expensive, least intentional form of it imagineable.

        1. Bill Fleming

          My assertions aside, Troy, your rumination about Catholicism and particularly the notion that “not doing” is a form of “doing” is most apt. It reminded me immediately of this classic poem by John Milton:

          On His Blindness

          When I consider how my light is spent
          Ere half my days in this dark world and wide,
          And that one Talent which is death to hide
          Lodged with me useless, though my soul more bent
          To serve therewith my Maker, and present
          My true account, lest He returning chide,
          “Doth God exact day-labour, light denied?”
          I fondly ask. But Patience, to prevent
          That murmur, soon replies, “God doth not need
          Either man’s work or his own gifts. Who best
          Bear his mild yoke, they serve him best. His state
          Is kingly: thousands at his bidding speed,
          And post o’er land and ocean without rest;
          They also serve who only stand and wait.”

          1. Bill Fleming

            Recall now, Troy that you (and the rest of us so disposed) are currently being taxed (under Social Security, Medicare and Medicaid) for not being over 65 years old (or disabled, or sick and destitute).

            And that it’s not just a good idea, it’s the law. ;^)

            1. duggersd

              Uh-oh. Bill is having a conversation with himself again. I am not sure if these are answers to what he is saying or just talking at himself.

  7. larry kurtz

    After giving up over here, something compelled me to look so I confess to only seeing this just now, Troy.

    It was Jeffrey Rosen the other day that helped me to understand how honorable Chief Justice Roberts is. You nailed it: the office changes a good person but has no effect on a psychopath.

    you are too predictable.


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