Tag Archives: United States Supreme Court

Give the President What He Wants—-and Give It To Him Hard!

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

The decision by the US Supreme Court upholding the Affordable Care Act mandate as a tax was a stunning surprise to many.  Probably no one was more surprised that President Obama.  He has seemed apprehensive that his signature legislative accomplishment was about to be thrown out.

What was also surprising was that the swing vote in the 5-4 decision was Chief Justice John Roberts.  Most speculation had focused on Justice Anthony Kennedy.  And equally surprising was the realization that Roberts could have taken then entire health care act down 5-4 had he sided with the conservatives who, in their dissents, said flatly that the mandate was unconstitutional and the rest of the act had to fall with it as an unconstitutionally broad overreach in the commerce clause.

But why did Chief Justice Roberts side with the President in this case?

And did the Chief Justice just pin the target on the President’s chest instead of having it pinned to his own back?

The beauty of this decision is the ruthless efficiency with which the Chief Justice has made the Affordable Care Act the central political issues in the November 2012 election instead of taking the burden on the back of the Court for undermining the President and Congress.  The decision protects the Supreme Court from being dragged into the political debate over the wisdom of the law while forcing the proponents of the law to defend it all over again in the court of public opinion.

The decision of the Chief Justice seems to follow the advice from two of the three Appeals Court decisions that were taken on review.

The 6th Circuit Court of Appeals in Cincinnati and the D.C. circuit Court of Appeals said in their decisions that while the law is intrusive it is within Congress’s power to enact.  The Washington Post quoted from the opinion of Senior Judge Laurence Silberman, a Ronald Reagan appointee, who said:

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

In deciding the case by upholding the law as a tax and limiting Congress’ power under the commerce clause, Chief Justice Roberts has sidestepped the political debate that will rage and fixed the accountability for the political wisdom of the act where it belongs—on the President and Congress.

Stop Electing Attorneys General

OK I admit it—this is my periodic rant about the insanity of electing state attorneys general.

Forty-three states do so while five states (Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming) treat the AG as just another cabinet level officer allowing the Governor to select his or her own attorney. The State legislature chooses the AG in Maine and the Supreme Court does so in Tennessee for an eight year term of office.

Imagine what would happen if your own attorney decided he didn’t like the decisions you were making and instead filed a lawsuit different than the instructions you gave him.


That is the fate of 43 Governors charged with managing a complex state organization with its many financial and management operations problems today.  But letting some politically motivated AG out to be Governor run loose speaking for the State as if they were anointed as Moses is democracy run amok.

Fragmentation of accountability is one of the great escapes of politicians.  If we expect to hold our Governors accountable for running the state then give them the authority to do so without having the chief lawyer working his or her own political agenda.

We would not tolerate it in our personal lives, we don’t put up with it in our business lives and we’ve made a mess of our civic life by turning our elected representatives into full-time, mischief making do-gooders for the special interest group willing to give them the most money for the next campaign.

There ends the rant!