Roberts the Chess Player

There is a lot of theorizing going around about Chief Justice Roberts being a wily chess player, who has outwitted the Marxist Left by his crafty opinion yesterday. One need only read the Kennedy dissent (and the short Thomas dissent) to see how fanciful this notion is. I am more in agreement with analysis that Roberts is a typical lover of elite approval and establishment thought (see C.S. Lewis, "The Inner Ring"). Here are some ‘dissenting opinions’ from the chess player idea:

http://talkingpointsmemo.com/archives/2012/06/chess_not_so_much.php

This is a bit of nonsense. First, the ruling hardly does anything to expand existing limitations on Congress’ legislative power under the Commerce Clause. Second, Roberts gave an expansive reading of Congress’ power under the Taxing Clause, susceptible to the exact same slippery slope (broccoli) arguments that were made against upholding ACA under the Commerce Clause. Third, Roberts has consistently demonstrated that he’s simply not that concerned about states rights and federal power (the immigration case immediately comes to mind). If anything, he knows that’s a losing battle. The Healthcare Cases are better understood as an attempt by Roberts to save the political capital of the Court for other fights — such as affirmative action, voting rights, marriage equality, corporate speech — and not as a sneaky way to further the federalism agenda.

And: http://www.chroniclesmagazine.org/2012/06/28/more-on-roberts/

What Roberts’ decision today tells us is that he is unlikely to ever cast a decisive vote against the consensus of the Washington elite. This means that the Roberts court will never overturn Roe v. Wade, because such a decision would create even more controversy than overturning Obamacare would have. And it also means that Roberts is unlikely to resist the strong political pressure that exists in elite circles to create a constitutional right to gay marriage.

http://www.chroniclesmagazine.org/2012/06/28/cant-get-fooled-again/

The author ignores the fact that "the Roberts Court" (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to "lay and collect Taxes" beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not, he even tries to make lemonade out of Roberts’ declaration that the penalty imposed by Congress for failure to purchase health insurance is "legally a tax":

Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.

Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!

Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to "nominate judges in the mold of Chief Justice Roberts" will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that’s a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.

Revolution?

Two years ago, when the Messianic State made its latest advance, I posted this. Things now seem worse on many fronts. The debt of around 16 *trillion* dollars is utterly unsustainable. The only thing holding government finances up is that the rest of the world will go down in flames with us if we go down, so the illusion of stability is maintained. At some point, we have to go Weimar, or get bailed out like Britain was in 1946, effectively ending their Empire.

Our government will not stop the madness until it literally has to, with no money on hand to pay military and civilian salaries, fund contractors, or maintain welfare payments to the masses. What will happen then? Riots, looting, the breakup of the Union, or something else? I don’t know, but looking at the mass emigration occurring from Greece and Ireland, as well as the suicides and people working for free provide some clues as to what our future will look like. It may not happen for ten years, or twenty, but it will happen, barring some unforeseen miracle of economic growth and government restraint.

So what to do? I think getting land somewhere that you can flee when cities go up in flames is a prudent idea. I think the Benedict Option will become more and more attractive as time goes on. Violent revolution and taking up arms are not options. Emigration would be nice, but to where? The Welfare State is in power almost anywhere you look that is civilized. It seems best to me to look for a quiet corner of America to retreat to when it all goes down.

To repeat what Jim Jordan said about the illusion of the Right in terms of taking power right now:

Back in the 1980‘s in an essay called “Rebellion, Tyranny, and Dominion in the Book of Genesis” from the book “Tactics of Christian Resistance”, James Jordan exegetes Genesis and its implications for Christian politics. His bottom-line is that right now we are in a situation where we must wait with patient faith, mature, and achieve power only in the distant future. Note that you should probably read the whole essay and understand his exegesis to understand his conclusions. An extended quote follows; Jordan writes:
Is the “New Right” really “ready to lead”? I doubt it. The New Right has not yet figured out the message of the book of Genesis. It continues to think that reformation will come through the acquisition of political power. By looking to the state, New Rightists (and old conservatives as well) make themselves statist. […]
Many conservative Roman Catholics thought that John Kennedy would help turn things around. They were disappointed; Mr. Kennedy apparently spent too much time doing other things to ask what he could do for his country. Mainline conservatives then trusted Richard Nixon, a man knowledgeable in international affairs, to turn things around. They were disappointed; Mr. Nixon’s conscience was not sufficiently seared to permit him to act like a Democratic Party politician, guilt-free. Bible believing Christians had high hopes for Jimmy Carter. Need we add that they were disappointed by the decisions made by Mr. Carter’s mother, sister, and wife? And then the whole New Right got behind Ronald Reagan, who by his appointments betrayed them before he even took office, and has now signed a bill, updating social security, which directly taxes the churches.
[…]
Frankly, I believe that in all of this God has, as always, been gracious to us. Are Christians in this country ready to take charge? Heaven forbid! Virtually none of them knows the first thing about the law of God, by which they are called to govern. Most of them do not even acknowledge the sovereignty of God. Few have any experience in governing, since their churches have no courts, being at best mere preaching points (where they have not degenerated into spas and literal circuses). The most powerful New Christian Right people are personality-cult oriented, one-man shows (and by shows I mean shows: radio shows, television shows, and the putting on of shows).
[…]
This is not to despise the New Christian Right, or to argue that we should not exercise our (remaining) liberties as Americans to pressure the larger governments toward more Godly actions. We need to remember, however, that there is only so much time and energy alloted to each of us, and essentially that time is far better spent acquiring dominion through service than in power politics.
We may contrast three different approaches, which are not mutually exclusive, but which are of varying value at present. First, there is the effort to change laws by getting people elected to office. That has not been very successful so far, and the reason is that the vast majority of Americans essentially like things the way they are. That’s why things are the way they are – it is what the people want, and it is what they deserve, and so it is what God gives them…
Second, there is the effort to go about our business as quietly as possible. We submit to the “powers that be,” not to any law that such powers may happen to enact. We do not recognize their right to make laws, for to do so would be to grant them absolute power; but we recognize that God has given them power, and we are not to contest that power as such. We practice deception where morally necessary, and that includes preserving our capital, protecting our households, and rearing our children, as Genesis makes clear. If we are taken to court, we fight in that arena for the right to conduct Christian lives, as Paul did in the book of Acts.
Third, there is the effort to develop a Christian subculture, building up the churches as true courts and sanctuaries, developing Christian arbitration and reconciliation commissions, Christian schools, Christian medical facilities, and the like. These latter two methods are the primary ones for our times. […]
When we are ready, God will give the robe to us. That He has not done so proves that we are not ready. Asserting our readiness will not fool Him. Let us pray that He does not crush us by giving us such authority before we are ready for it. Let us plan for our great-grandchildren to be ready for it. Let us go about our business, acquiring wisdom in family, church, state, and business, and avoiding confrontations with the powers that be. Let us learn to be skillful in deceiving them and in preserving our assets for our great-grand-children. For as sure as Christ is risen from the grave and is ascended to regal glory on high, so sure it is that his saints will inherit the kingdom and rule in His name, when the time is right.

Roberts

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

Opinion of ROBERTS, C. J.

“we place liberty at peril”

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.

The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism con-cerns and places an unaccustomed strain upon the Union.

Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn.

In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.



SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

“everything is within Federal control”

The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.

SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

“the hideous monster”

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting

“to extend federal power to virtually all human activity”

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting