Commentary Magazine


Posts For: June 29, 2012

Jackpot Justice Takes a Hit

Overturning the veto of Democratic Governor John Lynch, the New Hampshire legislature has enacted a significant reform of medical malpractice, one that can serve as a model for other states.

You can find the details at the Cato @ Liberty website of the Cato Institute, by my friend Walter Olson. Briefly, it gives plaintiffs in medical malpractice claims incentives to solicit an early offer of settlement on economic losses from the defendant. If the plaintiff accepts the offer, pain and suffering compensation would also be paid by the defendant, according to a scheduled assessment as well as “reasonable attorney’s fees.” If the plaintiff turns down the offer, however, and fails to get at least 125 percent of the original offer from a jury award, then he would have to pay the defendant’s reasonable legal fees and expenses.

Under this new procedure, the plaintiff gets his case settled, and his compensation, quickly. He is made whole and gets on with his life. The defendant also has an incentive to settle quickly to avoid huge attorney’s fees of his own and the threat of an off-the-wall jury award.

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Overturning the veto of Democratic Governor John Lynch, the New Hampshire legislature has enacted a significant reform of medical malpractice, one that can serve as a model for other states.

You can find the details at the Cato @ Liberty website of the Cato Institute, by my friend Walter Olson. Briefly, it gives plaintiffs in medical malpractice claims incentives to solicit an early offer of settlement on economic losses from the defendant. If the plaintiff accepts the offer, pain and suffering compensation would also be paid by the defendant, according to a scheduled assessment as well as “reasonable attorney’s fees.” If the plaintiff turns down the offer, however, and fails to get at least 125 percent of the original offer from a jury award, then he would have to pay the defendant’s reasonable legal fees and expenses.

Under this new procedure, the plaintiff gets his case settled, and his compensation, quickly. He is made whole and gets on with his life. The defendant also has an incentive to settle quickly to avoid huge attorney’s fees of his own and the threat of an off-the-wall jury award.

The losers here are the tort lawyers. Tort lawyers, needless to say, opposed this reform tooth and nail because it seriously threatens to cut them out of the action. They much prefer pain and suffering awards to be settled by juries, which can be swayed by their histrionic talents as much as by the facts. They don’t want reasonable attorney’s fees, they want huge jury awards they get a hefty chunk of by means of a contingency fee arrangement. But tort lawyers are economic parasites, creating no wealth whatsoever, just transferring it from one party to another and taking a big cut of it (often a third, sometimes more) in the process. They deserve no consideration here. Besides, the plaintiff is free to stick to the old system, take his chances with a jury, and wait years for a final resolution.

If the new reform works as intended, the price of malpractice insurance in the state will go down, reducing upward pressure on medical costs and thus the cost of medical insurance for the average person. And, because good ideas always spread, it will make its way to other states.

The perversion of tort law for the benefit of tort lawyers in the last half century has been a disgrace to the country, and a very expensive one, too. This looks like a big step in the right direction.

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Obama Sends Terrorists to Sub-Gitmo Hell

Among the unfortunate things about the ObamaCare ruling is that it’s taking oxygen away from some important stories. None more important than Eli Lake’s sensational scoop at the Daily Beast on the wretched facilities in Somalia where America is sending alleged terrorists caught in the expanded U.S. war on terror in that country. When Barack Obama came to office he described Guantanamo Bay as a “misguided experiment,” owing to the facility’s supposedly harsh conditions. He has since decreed that the United States will no longer accept new prisoners there (he was unable to close the facility altogether); Obama also shuttered CIA black site prisons in Europe. But if Gitmo was a “misguided experiment” and CIA sites beneath American standards of humane treatment, what on earth is this?

Overcrowded, underfunded, and reeking of urine, the Bosaso Central Prison could make even the most dedicated insurgent regret ever getting into the terrorism business. Many inmates don’t have shoes, and instead of uniforms, they wear filthy T-shirts and ankle-length garments wrapped around their waists that resemble sarongs (called ma-awis in Somali). When I visited earlier this year, the warden, Shura Sayeed Mohammed, told me he had 393 prisoners in a place designed to hold no more than 300. He said that since 2009, he had received 16 inmates captured by Americans.

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Among the unfortunate things about the ObamaCare ruling is that it’s taking oxygen away from some important stories. None more important than Eli Lake’s sensational scoop at the Daily Beast on the wretched facilities in Somalia where America is sending alleged terrorists caught in the expanded U.S. war on terror in that country. When Barack Obama came to office he described Guantanamo Bay as a “misguided experiment,” owing to the facility’s supposedly harsh conditions. He has since decreed that the United States will no longer accept new prisoners there (he was unable to close the facility altogether); Obama also shuttered CIA black site prisons in Europe. But if Gitmo was a “misguided experiment” and CIA sites beneath American standards of humane treatment, what on earth is this?

Overcrowded, underfunded, and reeking of urine, the Bosaso Central Prison could make even the most dedicated insurgent regret ever getting into the terrorism business. Many inmates don’t have shoes, and instead of uniforms, they wear filthy T-shirts and ankle-length garments wrapped around their waists that resemble sarongs (called ma-awis in Somali). When I visited earlier this year, the warden, Shura Sayeed Mohammed, told me he had 393 prisoners in a place designed to hold no more than 300. He said that since 2009, he had received 16 inmates captured by Americans.

Something tells me Bosaso’s inmates wouldn’t mind a transfer to Club Gitmo, where prisoners fatten up on halal chow, play pick-up basketball, take finance courses, and write poetry. As Lake explains, “Obama’s plan to get America out of the international jailer business means that developing-world prisons have picked up the slack.” So we’ve gone from the evil “Cheneyist” standard to the failed-state model, in which, according to Lake’s source, “guys end up with skin disease that spreads very quickly. It’s like a heat rash, they start bleeding, it passes onto the other prisoners.” And Lake was denied access to inmates associated with the al-Shabab terrorist group because, in the warden’s words, those men constitute a “virus” and “if we let them mix with the rest of the public, they can transmit the virus to the rest of the population.”

Far be it from me to shed a tear for terrorists rotting away in hellholes like Bosaso. The point is the president’s campaign against Gitmo was rooted in superficial moral vanity, not a deep morality. If he was so concerned about the treatment of captured terrorists it’s hard to see how he could sleep at night after having outsourced terrorist detention to Somalia. The same goes, of course, for his attendant war on waterboarding and enhanced interrogation. Under George W. Bush, the United States waterboarded three terrorists, all of whom gave up life-saving intelligence and then ended the enhanced interrogation program. Obama, on the other hand, made anti-enhanced-interrogation pronouncements, changed the definition of enemy combatant to any 18-year-old male in a given geographical area, and proceeded to incinerate scores of nameless such men in ramped up drone strikes in Muslim lands. Again, no one should have any illusions about the war on terror being a gruesome business. But it would be nice if one of Bush’s full-time amateur accusers pointed out Obama’s gargantuan moral hypocrisy and asked the president to comment on the nature of his post-Gitmo redemption plan for America.

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Why Upholding ObamaCare Will Badly Damage Obama’s Reelection Chances

Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?

I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.

For one thing, as others at “Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.

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Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?

I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.

For one thing, as others at “Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.

It was, and he has.

In addition, the decision by the Court to uphold the Affordable Care Act has once again thrust to center stage a historically unpopular law (one that is particularly unpopular in swing states).

The Supreme Court, then, has succeeded in once again inflaming the passions of the GOP base while reminding independents why they despise the ACA. The 2012 election may now take on a 2010 feel. And for those who might have forgotten, Democrats—thanks in large part to Obama’s health care law—sustained an epic defeat in that mid-term election.

As it was, so may it be.

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WH Needs Special Prosecutor Now

Senate Republicans have been calling on President Obama to appoint a special prosecutor to look into the national security leaks from the White House. This is even more critical in the wake of the Eric Holder contempt vote, as the same Obama-appointed U.S. attorney is now in charge of dealing with the charges against Holder and the investigation into the intelligence leaks.

The most obvious problem is the conflict of interest. It’s doubtful that U.S. Attorney for D.C. Ronald Machen, an Obama appointee, can fairly investigate his own boss (Eric Holder), or his boss’s boss (President Obama) in either the leak cases or the Fast and Furious stonewalling.

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Senate Republicans have been calling on President Obama to appoint a special prosecutor to look into the national security leaks from the White House. This is even more critical in the wake of the Eric Holder contempt vote, as the same Obama-appointed U.S. attorney is now in charge of dealing with the charges against Holder and the investigation into the intelligence leaks.

The most obvious problem is the conflict of interest. It’s doubtful that U.S. Attorney for D.C. Ronald Machen, an Obama appointee, can fairly investigate his own boss (Eric Holder), or his boss’s boss (President Obama) in either the leak cases or the Fast and Furious stonewalling.

But even putting that aside, Machen has now been referred two big, high-profile cases in a matter of weeks, both of which are vital to the public interest. The Washington Post reported last week that Machen already had a full plate, and his staff was overwhelmed with D.C. corruption prosecutions even before the leak case and Holder contempt charge got to his desk:

As if investigating D.C. public corruption wasn’t enough, Machen and his prosecutors were handed another difficult task June 8: spearheading a probe of leaks of classified material to reporters. That assignment came the same day that former D.C. Council Chairman Kwame R. Brown (D) pleaded guilty to federal bank fraud charges; Brown resigned just days earlier when he was charged in federal court by prosecutors who, with FBI agents, began by investigating discrepancies in his 2008 council campaign.

Although overall attrition has held steady, Machen has lost at least a half-dozen experienced and respected supervisors. In recent weeks, at least six prosecutors have said they will leave the 35-lawyer homicide unit.

A federal hiring freeze has made it difficult to replace those prosecutors, and those remaining are beginning to complain of burnout.

Can Machen’s office reasonably be expected to give the new workload the attention it deserves? Can he be trusted to pursue these cases fairly? The answer to both questions, at this point, seems to be no.

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The Literature of Conversion

Over at the blog of his publisher Tin House this morning, the novelist Christopher R. Beha recommends six books on conversion to Roman Catholicism, the subject of his novel What Happened to Sophie Wilder. In my review, I had observed that Beha’s superb first novel “includes what is perhaps the best conversion scene in an English-language novel since The End of the Affair.” I was happy to see, then, not only that Graham Greene’s 1951 novel made the list, but also that Beha acknowledges that it “significantly influenced What Happened to Sophie Wilder.” It is not often that a critic’s guess is so authoritatively proven right!

One other book mentioned in What Happened to Sophie Wilder also makes it onto Beha’s list — Thomas Merton’s 1948 autobiography The Seven Storey Mountain. This is the book, Beha notes, that “sets Sophie along the path to her conversion.” More significantly, though, it articulates what Beha calls the “common theme” of Catholic novelists: how to “reconcil[e] faith with the demands of the modern world.”

I’d submit that this is not a difficulty that faces Catholics and Catholic novelists alone. It is the difficulty of being religious. Perhaps the difficulty is more glaring, more uncomfortable, for converts than for those who are raised within a faith. (Orthodox Jews refer to the two classes as BT’s, for baalei teshuvah or converts, and FFB’s — those who have been frum [religious] from birth. Too bad Christianity doesn’t have a similar nomenclature.) But it is not this difficulty, in itself, that makes the experience of conversion so inviting a subject for good writers.

Adding to Beha’s list would be easy, especially if it were expanded to include Protestants and Jews. To my mind, the best accounts of conversion ever written belong to John Donne:

Thou hast made me, and shall thy work decay?
Repair me now, for now mine end doth haste,
I run to death, and death meets me as fast,
And all my pleasures are like yesterday,
I dare not move my dim eyes any way,
Despair behind, and death before doth waste
By sin in it, which it towards hell doth weigh;
Only thou art above, and when towards thee
By thy leave I can look, I rise again;
But our old subtle foe so tempteth me,
That not one hour I can myself sustain;
Thy Grace may wing me to prevent his art,
And thou like adamant draw mine iron heart.

Although I am a stranger to Donne’s religious vocabulary (I am often tempted, but not by God’s “old subtle foe”), I admire how beautifully Donne has dramatized the extent of the transformation in a person’s life that is wrought by conversion: behind, before, above, no matter where he looks, the religious person finds the meaning of everything has been transfigured.

William James’s chapters on conversion are the weakest in The Varieties of Religious Experience. James sounds like Rielle Hunter on the subject. Conversion, he says, changes “the habitual center of [a man’s] personal energy”:

It makes a great difference to a man whether one set of his ideas, or another, be the center of his energy; and it makes a great difference, as regards any set of ideas which he may possess, whether they become central or remain peripheral in him. To say that a man is “converted” means, in these terms, that religious ideas, previously peripheral in his consciousness, now take a central place, and that religious aims form the habitual center of his energy.

What James leaves out of account is God (“Only thou art above”). What he gets right is the importance of ideas. In his novel, Beha was also very good on this aspect of conversion, which usually goes unremarked. After Sophie reads The Seven Storey Mountain while a guest in a Catholic home, she discovers an entire literature — a subterranean literature for someone like her who was raised on the Western literary canon — a self-contained literature with its own rules and conventions, its own strategies and expectations, its own classics and commercial hacks. Beha grasps what few outsiders to religion understand: conversion also changes a person’s reading habits. Rilke gives way to Ratzinger, or Hemingway to the Hafetz Hayim.

A special subgenre of the literature is reserved for narratives about conversion to Judaism. The best-known title is Bernard Malamud’s The Assistant, in which “After Passover, he [Frank Alpine] became a Jew.” The autobiography of the Holocaust scholar David Patterson, who converted at the age of 42 (“Or perhaps it would be better to say that I stepped across a threshold leading to the path toward becoming a Jew”), is remarkably moving. It’s called Pilgrimage of a Proselyte.

Younger Jewish writers have begun to explore a more uniquely Jewish phenomenon — the experience of “return to Orthodoxy” (as it’s called, even when the Jew who “returns” was never Orthodox to begin with). In The World Without You, his recent saga of a secular liberal Jewish family, Joshua Henkin includes one daughter who has become a baalat teshuvah, a “born-again” Jew. She is also, not surprisingly, the only one of the three daughters with children. The single best account of the Jewish “return,” though, is Zoë Heller’s astounding and under-valued novel The Believers. Anyone who loved Christopher Beha’s first novel should read Heller’s immediately afterwards — for a rich appreciation of the differences in religious conversion, and in writing about it.

Over at the blog of his publisher Tin House this morning, the novelist Christopher R. Beha recommends six books on conversion to Roman Catholicism, the subject of his novel What Happened to Sophie Wilder. In my review, I had observed that Beha’s superb first novel “includes what is perhaps the best conversion scene in an English-language novel since The End of the Affair.” I was happy to see, then, not only that Graham Greene’s 1951 novel made the list, but also that Beha acknowledges that it “significantly influenced What Happened to Sophie Wilder.” It is not often that a critic’s guess is so authoritatively proven right!

One other book mentioned in What Happened to Sophie Wilder also makes it onto Beha’s list — Thomas Merton’s 1948 autobiography The Seven Storey Mountain. This is the book, Beha notes, that “sets Sophie along the path to her conversion.” More significantly, though, it articulates what Beha calls the “common theme” of Catholic novelists: how to “reconcil[e] faith with the demands of the modern world.”

I’d submit that this is not a difficulty that faces Catholics and Catholic novelists alone. It is the difficulty of being religious. Perhaps the difficulty is more glaring, more uncomfortable, for converts than for those who are raised within a faith. (Orthodox Jews refer to the two classes as BT’s, for baalei teshuvah or converts, and FFB’s — those who have been frum [religious] from birth. Too bad Christianity doesn’t have a similar nomenclature.) But it is not this difficulty, in itself, that makes the experience of conversion so inviting a subject for good writers.

Adding to Beha’s list would be easy, especially if it were expanded to include Protestants and Jews. To my mind, the best accounts of conversion ever written belong to John Donne:

Thou hast made me, and shall thy work decay?
Repair me now, for now mine end doth haste,
I run to death, and death meets me as fast,
And all my pleasures are like yesterday,
I dare not move my dim eyes any way,
Despair behind, and death before doth waste
By sin in it, which it towards hell doth weigh;
Only thou art above, and when towards thee
By thy leave I can look, I rise again;
But our old subtle foe so tempteth me,
That not one hour I can myself sustain;
Thy Grace may wing me to prevent his art,
And thou like adamant draw mine iron heart.

Although I am a stranger to Donne’s religious vocabulary (I am often tempted, but not by God’s “old subtle foe”), I admire how beautifully Donne has dramatized the extent of the transformation in a person’s life that is wrought by conversion: behind, before, above, no matter where he looks, the religious person finds the meaning of everything has been transfigured.

William James’s chapters on conversion are the weakest in The Varieties of Religious Experience. James sounds like Rielle Hunter on the subject. Conversion, he says, changes “the habitual center of [a man’s] personal energy”:

It makes a great difference to a man whether one set of his ideas, or another, be the center of his energy; and it makes a great difference, as regards any set of ideas which he may possess, whether they become central or remain peripheral in him. To say that a man is “converted” means, in these terms, that religious ideas, previously peripheral in his consciousness, now take a central place, and that religious aims form the habitual center of his energy.

What James leaves out of account is God (“Only thou art above”). What he gets right is the importance of ideas. In his novel, Beha was also very good on this aspect of conversion, which usually goes unremarked. After Sophie reads The Seven Storey Mountain while a guest in a Catholic home, she discovers an entire literature — a subterranean literature for someone like her who was raised on the Western literary canon — a self-contained literature with its own rules and conventions, its own strategies and expectations, its own classics and commercial hacks. Beha grasps what few outsiders to religion understand: conversion also changes a person’s reading habits. Rilke gives way to Ratzinger, or Hemingway to the Hafetz Hayim.

A special subgenre of the literature is reserved for narratives about conversion to Judaism. The best-known title is Bernard Malamud’s The Assistant, in which “After Passover, he [Frank Alpine] became a Jew.” The autobiography of the Holocaust scholar David Patterson, who converted at the age of 42 (“Or perhaps it would be better to say that I stepped across a threshold leading to the path toward becoming a Jew”), is remarkably moving. It’s called Pilgrimage of a Proselyte.

Younger Jewish writers have begun to explore a more uniquely Jewish phenomenon — the experience of “return to Orthodoxy” (as it’s called, even when the Jew who “returns” was never Orthodox to begin with). In The World Without You, his recent saga of a secular liberal Jewish family, Joshua Henkin includes one daughter who has become a baalat teshuvah, a “born-again” Jew. She is also, not surprisingly, the only one of the three daughters with children. The single best account of the Jewish “return,” though, is Zoë Heller’s astounding and under-valued novel The Believers. Anyone who loved Christopher Beha’s first novel should read Heller’s immediately afterwards — for a rich appreciation of the differences in religious conversion, and in writing about it.

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The New “Shared Responsibility” Power

So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act — to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

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So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”

Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act — to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”

Over at SCOTUSblog, Ilya Shapiro’s perceptive post is entitled, “We won everything but the case.” It is worth reading in its entirety. Scott Rasmussen notes that ObamaCare has already lost in the court of public opinion. The electorate will have the opportunity to use its own constitutional power in 130 days.

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The Chief Justice’s Irresponsible Decision

I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

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I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.

Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.

Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.

Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.

It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.

Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.

The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.

It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)

Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.

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Ruling Has Silver Lining for Romney

I find it hard to believe the spin that the Supreme Court upholding the health care law is somehow politically better for Republicans because it will “energize the base.” Nullifying Obama’s signature legislative achievement — which he rammed through while the economy was on the brink — would have been a powerful blow to his campaign (and don’t tell me that wouldn’t have galvanized the conservative base just as well).

But there is a silver lining here for Mitt Romney. If the Court had overturned the law in its entirety, Romney would have been under intense pressure to provide a detailed alternative — a challenge that, as David Frum points out, would be difficult enough for him after the election. This would be a far more perilous task during the election, which is why, so far, Romney has avoided it.

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I find it hard to believe the spin that the Supreme Court upholding the health care law is somehow politically better for Republicans because it will “energize the base.” Nullifying Obama’s signature legislative achievement — which he rammed through while the economy was on the brink — would have been a powerful blow to his campaign (and don’t tell me that wouldn’t have galvanized the conservative base just as well).

But there is a silver lining here for Mitt Romney. If the Court had overturned the law in its entirety, Romney would have been under intense pressure to provide a detailed alternative — a challenge that, as David Frum points out, would be difficult enough for him after the election. This would be a far more perilous task during the election, which is why, so far, Romney has avoided it.

Any Republican candidate would find it tricky to come up with health care reform that appeased the diverse conservative base, was politically and financially viable, and still somewhat defensible against Democratic attacks. For Romney, these problems are compounded by the fact that he’s still paying penance for RomneyCare. Conservatives still view him warily and don’t trust him completely, especially on health care. If his proposal wasn’t 100 percent Tea Party-approved, it could mean disaster for his campaign. And if it did pass muster with all the far-flung corners of the conservative base? Then Democrats would finally have the “radical, right-wing” candidate they’ve been dying to run against. They would do to Romney what they’ve tried to do to Paul Ryan.

Yesterday’s decision means Romney gets to avoid all that — at least for now.

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When Legacy and Legitimacy Collide

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

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In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

Not only did the Court uphold ObamaCare, but Roberts twisted constitutional logic in knots to save the bill. Suddenly, Obama needs the public’s faith in the institution he kicked dirt at for three years to be restored, or the legitimacy of its ObamaCare decision will be called into question. Liberal pundits said the Roberts ruling would improve the Court’s image. It’s possible, but because this legislation was so broadly unpopular, it’s not clear at all that they will applaud this decision. Unlike Roberts, the Congress that passed ObamaCare, highly paid liberal purveyors of Beltway conventional wisdom, and, yes, Obama too, the people are outside the elite institutions looking in.

And what they saw was a display of quintessentially elite behavior. Obama has always been clear: he is a fan of single-payer health insurance, and has always opposed the individual mandate, which he has now embraced, and which he insisted wasn’t a tax. The bill that finally passed in his name was a mess, but the president had to have something–his legacy depended on it. What the process produced was not good legislation, but by that point it no longer mattered; Democratic Party leaders began admitting that nobody had any idea what was actually in the final bill.

Yesterday, at the Supreme Court, John Roberts made a decision based on his legacy as chief justice. He doesn’t seem to completely believe what he wrote in his majority opinion, and neither does anyone else on the Court. Just like the legislation itself, the Court ruling that saved ObamaCare was the result of an elite member of an elite institution thinking about the history books.

The Supreme Court can take some solace in the fact that it wasn’t the only institution whose legitimacy was under constant assault from the Obama administration. Once the Democrats had their overwhelming majority in Congress taken away by the people, it too found itself in the dock. This was ironic, because the Senate was and is still controlled by the Democrats; in order to delegitimize the institution, the Democrats have to perform an ongoing and ugly act of self-sabotage–for example, by blocking broadly popular bills and refusing to pass a budget. And as Bethany reported this morning, the institution of the presidency–currently consumed by a habit of using vulgar language–isn’t faring all that well either.

But the media’s complicity in all this cannot be blamed on the president. Surely, Obama has set a tone, and that tone has been followed. But he isn’t responsible for the more hysterical smears of his supporters. It’s not Obama’s fault, for example, that a writer at a respected liberal journalistic institution accused the country’s most accomplished jurists of attempting a coup–Obama isn’t an editor there, nor is he the fallen education system that produced such thinking.

But he may find that he’s uncorked something he can’t get back in the bottle once he goes looking for institutional legitimacy and only finds rubble. And in such a case, he may find that this, too, will be his legacy.

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An Enormous Expansion of Federal Powers

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

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The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

Now, it may be objected that Roberts is entirely correct. This is nothing new. The government has been taxing inactivity and omissions for a long time. On some such understanding, income-tax deductions for you are taxes on me. I rent my house; you own yours. You get the mortgage deduction; I pay a higher tax than you — a renter’s tax, you see, a tax on not owning a home.

But this objection is broken-backed. Here’s why. If you were to start over, designing a tax code from scratch, and if you wanted to begin by imposing a tax on renters, how would you do so? By taxing renters. For the affirmative act of renting a place to live. In the absence of a tax on homeowners, however, this newfangled renter’s tax could hardly be described as a tax on the omission of not owning a home. Next you might impose a tax on cigarettes. But would you call this a tax on not not smoking? Ockham’s razor would slice away the double negative: it’s simply a tax on smoking.

Under the current system, moreover, you can forego the mortgage deduction, placing yourself on the same tax level as us renters. Granted, it’s unlikely that you will ever do so — but (in language that Justice Roberts uses elsewhere in his opinion) it’s “fairly possible.” The mortgage deduction is optional. Not the ObamaCare tax, though. If I don’t pay it (and don’t pay for health insurance either), the IRS can withhold my tax refund. The ObamaCare tax is mandatory. For the first time in U.S. history, the federal government is empowered to impose a mandatory tax on the failure or refusal to act.

Justice Roberts anticipated these criticisms. “Even if only a tax,” he said, the payment due for not buying health insurance “remains a burden that the federal government imposes for an omission, not an act.” He tried to “allay” this “concern” by observing that the ObamaCare tax “nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”

But this “choice” is an illusion of choice. When it comes to cigarette taxes or gasoline taxes, I have a real choice — I can choose not to smoke, not to drive. My choice is between activity and inactivity. Omission waives the tax. When it comes to the ObamaCare tax, however, my choice is to pay or pay. Either I pay for health insurance or I pay the tax. My choice is between two variations of the same activity. The government is compelling me to action I might otherwise not have taken.

The familiar example of something the government might compel U.S. taxpayers to purchase is broccoli. Justice Ruth Bader Ginsburg dismisses this example as “the broccoli horrible.” But in his dissent, Justice Anthony Kennedy takes it seriously. What if broccoli were found to contain unique cancer-fighting properties? Your refusal to consume it would then produce “health-care costs that are a burden on the rest of us,” Kennedy said, in which case — on the logic of the ObamaCare tax — “moving against those inactivities will also come within the federal government’s unenumerated problem-solving powers.”

Anyone who believes this is an abstract phobia has not been paying attention to the culture during the past two decades. All sorts of omissions have come under attack in recent years — pharmacists who refuse to dispense abortifacients, churches and yeshivot that refuse to ordain women, institutions and jurisdictions that refuse to recognize same-sex marriages, golf clubs that refuse to admit women. Statistical disparities are advanced as prima facie evidence of omission — higher average salaries for men than women (or higher average salaries for whites than blacks), magazines that publish fewer women than men (or fewer blacks than whites), schools with lower admission rates for blacks than whites (they rarely have too few women). The new taxing authority created out of whole cloth by Justice Roberts is a powerful tool for compelling compliance with the cultural fashion of the moment. Augusta National can now be taxed for refusing to admit women, and wedding photographers can now be taxed for refusing to snap pictures at same-sex nuptials.

By creating the ObamaCare tax, the Supreme Court of the United States has created a means for the federal government to slap a price on non-conformity.

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The Damage John Roberts Has Done

There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.

Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.

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There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.

Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.

It is not just the contradiction I point out in the New York Post today—saying the mandate is not a tax on page 15 and saying it is on page 35. That illogic runs in parallel with the simultaneous acceptance of an enormous increase in federal power while simultaneously evoking the need to limit it. It is all well and good to assert both conclusions, but they cannot be reconciled by ignoring the need to reconcile them! Roberts is far too intelligent not to know this. And yet, in the most important opinion of his career thus far, he signed his name to something that, were he a professor grading a paper in which such an argument was advanced, he would be compelled to circle three times in red with arrows pointing back and forth.

This is why my friend David Brooks’s description of the Roberts decision as “Burkean” does an injustice to Burke, perhaps the greatest polemicist in the English language, who would never have engaged in such slipshod reasoning.

A writer’s first responsibility, pace the Straussians, is unity—clarity in prose that reveals the clarity of argument. I know that a court decision is not an article but a negotiated document; even so, these decisions are intended to govern the thoughts of others, and when they indulge in casuistry, they legitimate casuistry in other courts. Roberts may want to limit federal power, but in rewriting a law’s language for his own purposes, he is effectively expanding court power in a profoundly damaging way.

If it is indeed the case that Roberts switched sides because he was worried about the political legitimacy of the Supreme Court, he made a devil’s bargain. It is meretricious decisions like these that damage its legitimacy far more than any immediate political controversy.

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Obama Hit on Tax Hike Broken Promise

Get used to hearing about Obama’s “massive” middle-class tax hike from Republicans, as they try to squeeze lemonade from yesterday’s Supreme Court decision. The administration has been on the record repeatedly arguing that the mandate was a penalty, not a tax, and one of Obama’s more memorable campaign promises was that he wouldn’t raise taxes on those making more than $250,000 a year — his red line for the middle class. This was upended by the decision yesterday, and as Forbes points out, there are now seven different ObamaCare tax hikes on under-$250k-a-year earners.

RNC fires the first shot with this tough new ad (h/t Ed Morrissey):

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Get used to hearing about Obama’s “massive” middle-class tax hike from Republicans, as they try to squeeze lemonade from yesterday’s Supreme Court decision. The administration has been on the record repeatedly arguing that the mandate was a penalty, not a tax, and one of Obama’s more memorable campaign promises was that he wouldn’t raise taxes on those making more than $250,000 a year — his red line for the middle class. This was upended by the decision yesterday, and as Forbes points out, there are now seven different ObamaCare tax hikes on under-$250k-a-year earners.

RNC fires the first shot with this tough new ad (h/t Ed Morrissey):

For the chaser, check out the National Republican Congressional Committee’s fitting adaptation of Joe Biden’s infamous “BFD comment.”

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Obama Won Ruling But Lost His Dignity

Following the Supreme Court’s decision on ObamaCare, a degree of celebration was expected. Many in the pundit class have said the Court’s decision could be the single most influential event on the November election.

After the dust settled and it became clear that the healthcare law survived the gavel, officials in the Democratic National Committee (DNC) and Obama administration went to their computers to let off some steam.

The executive director of the DNC took to Twitter and sent out the following message: “it’s constitutional. Bitches.” The DNC’s new media director vented on Twitter, immediately tweeting, “Overheard in the office: ‘TAKE THAT MOTHER******S!!'” The tweet was soon deleted, but nothing on the Internet disappears completely. Screen shots were taken and that soon appeared on Twitchy, which was then linked to by Drudge.

One might understand this momentary weakness and forgive the total loss of decorum if it wasn’t then replicated by the president’s digital and campaign staff. But it was.

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Following the Supreme Court’s decision on ObamaCare, a degree of celebration was expected. Many in the pundit class have said the Court’s decision could be the single most influential event on the November election.

After the dust settled and it became clear that the healthcare law survived the gavel, officials in the Democratic National Committee (DNC) and Obama administration went to their computers to let off some steam.

The executive director of the DNC took to Twitter and sent out the following message: “it’s constitutional. Bitches.” The DNC’s new media director vented on Twitter, immediately tweeting, “Overheard in the office: ‘TAKE THAT MOTHER******S!!'” The tweet was soon deleted, but nothing on the Internet disappears completely. Screen shots were taken and that soon appeared on Twitchy, which was then linked to by Drudge.

One might understand this momentary weakness and forgive the total loss of decorum if it wasn’t then replicated by the president’s digital and campaign staff. But it was.

The official Twitter account of the president of the United States tweeted last night: “Still a BFD: http://OFA.BO/ayPgAZ” For those of you unsure of the definition it can be found here on a site that translates young people’s speak into everyday English. The president’s Twitter account quoted a hot-mic utterance of the vice president’s from when the bill was passed. Instead of repudiating the vice president’s total lack of class and dignity, the president decided to imitate it on the world’s stage. The link leads to the Obama campaign store – they’re selling a t-shirt to match the president’s tweet. You cannot make this stuff up.

Just in case you missed that tweet – just wait – there was even more classlessness from the Obama campaign last night. President Obama’s campaign manager sent a fundraising email with the subject line, “Let’s win the damn election.” “Win the damn election” was also repeated in the body of the email.

Perhaps I shouldn’t, but I would like to remind the Obama campaign of its target audience. Young people, if they make it out to vote in the same numbers as they did last time, are still more or less in the bag for Democrats. The target constituencies the Obama team should be focusing on are the middle-aged and middle class voters in states like Ohio, Pennsylvania and Michigan. This kind of behavior may have be seen as cutting edge from a young underdog in the race. Not from the president of the United States. While the president has a reelection campaign to run, one would hope he would keep in mind that the office of the president deserves more respect.

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‘I Am the Girl in the Bunker’

Many young American Jews, especially those who are educated at Orthodox schools, often spend a year in Israel between high school and college studying. Talia Lefkowitz, a graduate of New York City’s Ramaz, instead has spent the past year with a paratrooper unit in Israel. She writes powerfully in limpid prose of her experience in the midst of rocket attacks this morning at Tablet:

Hours go by without a rocket, and I start to relax. Maybe it’s over. The media, even the Israeli newspapers, are saying that it is no big deal. I start to believe them. But then another bomb hits without warning, and this one falls just feet from us. It’s like an earthquake. The room sways, and I fall out of my bed. The next few minutes seem to move in slow motion. Screaming, frenzy, smoke. Everyone running. Hands covering their ears. Wiping their eyes. Holding tissues over their mouths and noses.

Read the whole thing.

 

Many young American Jews, especially those who are educated at Orthodox schools, often spend a year in Israel between high school and college studying. Talia Lefkowitz, a graduate of New York City’s Ramaz, instead has spent the past year with a paratrooper unit in Israel. She writes powerfully in limpid prose of her experience in the midst of rocket attacks this morning at Tablet:

Hours go by without a rocket, and I start to relax. Maybe it’s over. The media, even the Israeli newspapers, are saying that it is no big deal. I start to believe them. But then another bomb hits without warning, and this one falls just feet from us. It’s like an earthquake. The room sways, and I fall out of my bed. The next few minutes seem to move in slow motion. Screaming, frenzy, smoke. Everyone running. Hands covering their ears. Wiping their eyes. Holding tissues over their mouths and noses.

Read the whole thing.

 

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Page 15 and Page 35

In today’s New York Post, I speculate that Chief Justice John Roberts may have wanted us to see the illogic in his fascinatingly sophistic opinion in the Obamacare case:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

The whole piece is here.

In today’s New York Post, I speculate that Chief Justice John Roberts may have wanted us to see the illogic in his fascinatingly sophistic opinion in the Obamacare case:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

The whole piece is here.

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