B. Bowen: An independent judiciary

I do not know why it is difficult for people to believe that the Supreme Court is independent of Washington politics. Certainly Chief Justice John Roberts holds conservative beliefs, but more importantly, his judicial philosophy is to interpret the law based on a strict understanding of the Constitution, as well as through the lens of the precedent of the court.

That is precisely what happened with the health care case. Those who don't believe so have not read his opinion. Hooper v. California requires that when the court rules on a law, "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."

Accordingly, Justice Roberts considered each of the government’s arguments when writing his opinion. The arguments made to defend the constitutionality were based firstly on the commerce clause, secondly on the "necessary and proper" clause, and thirdly on Congress' taxation power.

Chief Justice Roberts acted in his capacity as the chief justice of an independent judiciary.

Just because the Democrats don't like the fact that the law was upheld under Congress' taxation power doesn't mean that it is not a tax. Likewise, though Republicans do not like the fact that Roberts did not side with them does not give them permission to attack his judicial philosophy (which they agreed with back during his confirmation hearings).

To be clear: I believe the Affordable Care Act is bad public policy, but I have the highest respect for Justice Roberts’ ability to avoid Washington politics.

Brent Bowen, Lewiston

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MARK GRAVEL's picture

Simple questions – if it is a

Simple questions – if it is a tax, why can’t the government call it a tax? What is the
Obama administration afraid of? Why is the federal government playing on words? Words have meaning don’t they?

 's picture

Who is master?

Humpty Dumpty: When I use a word, it means just what I choose it to mean—neither more nor less.
Alice: The question is, whether you can make words mean so many different things.
Humpty Dumpty: The question is, which is to be master, that's all.

Answer deferred to 11/6.

 's picture

Yes they do; that's why conservatives re-define everything all

the time like Roberts did.
The Obama adminstration called a penalty what it is a penalty. Judge Roberts said that it can be considered a tax for constitutional purposes only. If you don't pay a tax or a credit card bill or a mortage on time you pay a penalty - a punishment for not acting as the law requires. That doesn't make it a tax, or a credit card bill or a mortgage.

MARK GRAVEL's picture

If it is not a tax, there are

If it is not a tax, there are no constitutional grounds for the penalty for since not purchasing a product.
That said, the Justice system failed because the Court changed the definition in the law simply to say the action is constitutional. Why write laws in the first place if we can change the meaning of the text to suit whatever definition is necessary for the moment?
This behavior is insanity ..|..

 's picture

I wish I could disagree with you

Roberts decision was insane and has no Constitutionally valid basis. It was insanity.
I don't understand your second half of the first sentence. Penalties for not behaving in a specific way are routine in law. Purchasing a product adds nothing to the issue at all except for someone who believes in the myth of small government then the implications are horrendous. But Roberts must have thought that his decision so crippled the use of the commerce clause that the implications were realistically muted. He's wrong on all counts.

MARK GRAVEL's picture

What gives the Government the

What gives the Government the right to force me into commerce?

Start at the beginning, what makes the law constitutional if it is not a tax?

You should be able to anwser this in 20 words or less...

 's picture

As I have said in every comment

The Commerce Clause; tradition; implicit powers. Article I of the Constitution. More if you need it

MARK GRAVEL's picture


for since --> for simply

Joe Morin's picture

Honesty lends credibility

Tax defined - a sum of money demanded by a government for its support or for specific facilities or services, levied upon incomes, property, sales, etc...

Penalty defined- a punishment imposed or incurred for a violation of law or rule.

Really Jon??? This is not a chicken or the egg scenario. First come a tax and then after non-compliance comes the penalty.

Your examples are flawed due to the fact that both credit card balances and mortgages are willfull agreements with an institution to make payments on money loaned. The penalty on those cards comes with the violation of rules that were agreed upon in a signed contract. furthermore, the law is only constitutional as a tax. The fact that policy makers are trying to characterize in a way that is disingenuous and makes it unconstitutional is embarrassing.
Republicans drive me nuts with the bible thumping and Democrats drive me nuts because they work in deceptive narratives not truths. Oh yeah, and the inability to do basic math.

 's picture

So the government is you enemy???

1. But there is no tax. The government does not expect you to pay them a specific amount of money for services the government will perform. The government expects you to pay a private insurance company of your choosing for a service the private company will perform. So its not a tax. But it clearly is a penalty. Having failed to follow the law you are fined. But this is all moot anyway. The IRS has been designated to collect the penalty but denied the legal means to do so. A penalty not collected is not a penalty.
2. Is the government your enemy? "flawed due to the fact ....mortgages are willfull agreements" . Every day I make the willful agreement to support and defend the Constitution of the US which means that when a law is passed by congress and signed by the President I have willfully agreed to abide by it unless later overturned by the Supreme Court as unConstitutional. In this case 4 justices found the law Constitutional under the Commerce Clause as it is; one rogue justice apparantly to defend the honor of the court created this bizarre taxing power argument.
3. "deceptive narratives". Please if you wish name one. Its true every party tries to spin - I call it commerce lying. They present half the story that supports their conclusion. Selling soap if you will. But the Republicans support the interests of the Corporate elite because they think they are morally superior to everyone else and they readily admit this. Well you can't get elected supporting the interests of the 1% against the 99%. So the Republicans have made a coalition with the evangelicals (historically this is not true; the Republican party has always been the party of evangelicals, but evangelicals have not controlled the party since the 1880's so they had to reestablish that control in the 1970's and it made it look like they were forming a new coalition) with business elite. Still they are a minority party so their political PR has to lie in order to pull in enough people voting against their own self-interest to win.
Romney's campaign is a classic example - one lie after another, one half truth after another, one flip-flop after another, one a penalty is a tax, a fetus is a baby, tax cuts pay for themselves, regulations are slowing growth (that was the basic argument of the Mafia), etc.
No party is pure; but the Democrats for all their warts are a damn site more honest than republicans. And I'm not a registered Democrat.

MARK GRAVEL's picture

Jon, You keep dancing around

You keep dancing around the crux of the issue. If it is not a tax, then there are no constitutional grounds for the individual mandate.
How can you defend the constitution with one hand, but disregard it on the other hand?
You cannot have it both ways. Not a tax, not constitutional. The only way the Supreme Court justified constitutionality of the individual mandate was to call it a tax.

Your circular arguments are simply partisan politics.

Lastly, you should not lie.....Your a damn liar!

Jonathan Albrecht's Additional Information

Evolution of American political ideas, Constitution, Second Great Awakening and its impact on American ideas, first half of 19th century cultural, political, and economic way of life for working Americans.

Groups and Associations: Democratic Party

 's picture

Yes I can

The individual mandate is Constitutional under the Commerce clause. 4 justices agree. We have a long history of requiring individual mandates and penalties when they are not met.
The Court did not justify the mandate based on the taxing power; Roberts did. Read the opinions.
My argument is not circular. I agree Robert's decision is insane; but so is the dissent of the Conservative justices. I thank Roberts that he invented this bizarre way to uphold the ACA; but I don't buy his reasoning at all.
I am a registered Green, independent and have been so since Obama agreed with Republicans that tax cuts pay for themselves during his speech announcing the Deficit Agreement some years ago. So if you think that being associated with the D's is the same thing as being registered G well you are wrong. I do not lie.

MARK GRAVEL's picture

The individual mandate is

The individual mandate is Constitutional under the Commerce clause. 4 justices agree.

4 does not make a majority decision, so that Justification is not constitutional.

You are really misinformed about the Supreme count decision aren’t’ you?

Roberts and the Court’s four liberals voted to uphold the individual mandate under Congress' power to “lay and collect Taxes.” Here’s part of how Roberts makes the case:
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

Now do you want to continue to display your misinformation for all the reader’s to see?

 's picture

Sorry read the opinions

Roberts wrote the majority opinions but the liberals wrote their own dissent saying the commerce clause was the justification. They signed on to Robert's majority opinion because it supported the ACA. Not because they agreed with his convoluted justification.
Well you and Roberts must be bunking together. Its a penalty; it says its a penalty, the Massachusetts law says its a penalty; Romney said its a penalty before he said it was a tax. We have many penalties collected by the IRS that have nothing to do with Taxes. But the whole argument is moot because the IRS is specifically barred by the law from collecting the penalty. No collection, no penalty, no tax.

MARK GRAVEL's picture

Only the major decision is

Only the major decision is relevant to the law.

 's picture

Agreed, but

the dissents, comments outside the reasoning of the majority decision are often critical to future decisions. Hell, the mythical idea that corporations have the same civil rights as people was first a footnote written by a clerk in an unrelated case. Any thing in a Supreme Court case is legally important if not immediately enforceable.

Zack Lenhert's picture

This argument of semantics is

This argument of semantics is awesome, but nobody is going to care in November. It's indistinguishable to the common voter from Romneycare so pretty much any critism of Obama would also apply to Romney. Rick Santorum was right... I can't believe I just wrote that.

 's picture


But the issue demonstrates two things. The Republicans will oppose their own proposals and laws when offerred by any Democrat. Democrats, Obama is this case, have bent over backwards to win Republican support by offerring up Republican proposals and abandoning their own. Washington is broken; and the Republicans broke it.

MARK GRAVEL's picture

Here we go blaming on major

Here we go blaming on major political party for all the ills in Washington. This really smacks of partisan politics doesn’t it? What color is your kettle?

Perhaps a more accurate message is that both parties, in general, are screwing this country.

Anyone who claims that its all the Republicans or Democrats fault is simply waving the flag of partisanship.

Better living through smaller government.

 's picture


Isn't it convenient to blame everyone and therfore no one and just chalk it up to partisanship or big bad government. That means you don't have to follow the news. You don't have to research. You don't have to think. You have an instant solution to every controversey.

MARK GRAVEL's picture

What can I say? If you don’t

What can I say? If you don’t realize that both R/D’s are to blame for America’s problems, then you’ll remain stuck wearing your partisan, rose covered glasses.

Large government creates problems that it then attempts to solve but cannot. Take it to the root, don't let government create the problems in the first place.

Better living through smaller government.

MARK GRAVEL's picture

You have a good point. Romney

You have a good point. Romney will have difficulty attacking ObummerCare; that is why he shouldn’t. Romney should stick to economic issues.

 's picture

But he can't

All he has to offer is 8 years of failed Republican economic ideas which produced the worst economic growth and job creation since the Great Depression and his mafia capitalism philosophy that has looted many companies for his personal benefit. Try selling those ideas.

MARK GRAVEL's picture

You are talking about

You are talking about President Obama, correct? It sure sounds like it.

"All he has to offer" (Obama) vs. All that he had to offer (Bush).

Better living through smaller government!


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