Wednesday, July 04, 2012

The Roberts Opinion - Should It Lead to New Amendments?

I must be getting old.  I see good sense in the Roberts Court ruling that the penalty payment for not buying health insurance constitutes a tax.  It will force Congress to refine the "tax" in the future, and it slams the door shut on use of the Interstate Commerce clause to justify government-mandated purchase of insurance and other products.

I don't know how the Supremes keep their noses out of politics.  But for all their disclaimers, their opinions show where the rubber of politics meet the road of law in America.  They also show that even the exalted justices don't know what the law is or means.  They simply cannot agree on it. 

In due course, a corresponding tax case will hit the Supreme Court.  Maybe the Supremes will answer the questions of how the tax operates as an indirect tax (obviously it does not constitute a direct tax or the Congress would have "apportioned" it).  Maybe they will explain how, if it constitutes a direct tax, Congress can collect it directly from the people without apportioning it, and whether apportionment means "everybody pays the same amount of tax" or "collect the taxes from the State Legislature or State Treasury."  Then maybe the Supremes will explain how Congress can tax the States through apportionment even though the States no longer have representation in the federal Government that "united" them.  And if the Supremes think it constitutes an indirect tax, maybe they can explain what activity, happening, occurrence, or event triggers it, and from whom Congress may rightly collect it.

I see problems in America's government as extensions of its civilizational problems - an excessively stupid, ignorant, irresponsible electorate.  But for that, America would have no justification for mandatory Social Security or Health Care programs.  Nor would a largely well-informed, intelligent, responsible electorate tolerate legislating from the bench, over-regulation, fiat currency, secretly owned central banks that pay no tax, and unconstitutional wars, laws, and executive orders.  We need amendments to the Constitution to curb Government insanity that stems from an essentially insane electorate.  The amendments must:
  1. Require all non-unanimous panel rulings to go to the next higher Court for immediate adjudication (even if that means appointing a few dozen justices to handle the work load).
  2. Require all non-unanimous supreme rulings to go to Congress for immediate clarification by law revision.
  3. Establish a 4th Branch of Government to Inform and Advise both the public (including the press, for mandatory publication) via internet and Government, and requires it to make full public disclosure of the salient issues in political campaigns, laws, executive orders, court rulings, and the backgrounds of political candidates for election/appointment and highly placed public officers.  This branch has the power to sue government officials on behalf of injured Citizens or the Constitution for breaches of oaths and prosecute the cases with outside legal counsel at government expense.  It would become like the ACLU on steroids.  Its officers would consist of retired senior executives from industry, law, news media, academia, the scientific community, and military (but not from elsewhere in any government or from banking).
  4. Require the Courts to allow public recording of court proceedings and provide full, free public internet access to all court documents, organized for easy finding, and administered by the 4th Branch.
  5. Require Congress to explain precisely how the Constitution authorizes a law and how the law comports with the Constitution without violating any rights of the people or states.
  6. Require the same for Presidential executive orders.
  7. Requires the Supreme Court to adjudicate political issues like whether Congress or the President have comported with law and the Constitution in effecting executive orders, public/private laws, resolutions, and military/police actions.
  8. Limits suffrage to competent, productive non-felon Citizens.
  9. Require full-power Grand Juries in all States, require empanelment with informed, intelligent citizens, remove Government interference from them, and empower them to hire non-government counsel and private investigators, and to receive and investigate reports of crimes by all Citizens and legal aliens, and to prosecute public officers.
  10. Exclude bar members from government employment, prohibit bar membership for at least two years after cessation of government employment, and define Practice of Law as professional activities of licensed attorneys (meaning non-attorneys may do the same activities without government interference - caveat emptor).
  11. Mandate fostering nationwide eugenics programs to elevate the quality of the gene pool.
  12. Shift ownership of Federal Reserve to the US Government, eliminate all Federal Reserve debt to the US, nationalize mines and underground organic and mineral reserves (including oil, gas, gold, silver, diamonds, copper, iron, jade, etc), and eliminate fiat currency.
  13. Require a 4/5 majority of both houses to enact a deficit budget, but require elimination of all foreign aid, all payments to the UN and other treaty organizations, and a repudiation of debt to the Federal Reserve Bank as necessary to prevent the deficit first.  This might go hand in glove with requiring all foreign holders of debt to diminish it by taking products (at full retail value) manufactured in the US prison system in lieu of debt payments.
  14. Define "natural born Citizen" and require hard proof of credentials and qualifications and actual verification (by the fourth branch) of all people taking government employment.
  15. Eliminate lobbying and campaign contributions except by individual US Citizens free of outside influence.

I have long agonized over questions of who owns land and the stuff in and under it.  A farmer should have the right to his crops and to a fair return on his labor for unearthing natural resources.  But should people own the gold in the ground?  I think not, particularly when it operates as the basis of money values.  A nation cannot maintain value to its currency unless backed by something generally considered precious like gold, silver, oil, etc.  Private ownership of such stuff from the ground makes no sense (because of competition of nations and banks for it), even though ownership of the mining operation does.  Government can take the refined produce of the mine and use it to back the currency, and pay the fair price to the miner in that currency, but own the product itself.  Maybe in the end it benefits Government more merely to tax it, but so what?  Private ownership of the raw or refined output that backs dollars makes no sense so long as Government maintains its money values in correspondence with the natural resource in question.

OPEC has proven the stupidity of governments allowing private ownership of oil.  The US turned oil into the de facto currency standard in 1971, 11 years after OPEC had proven the cartel could jack up the price of oil and the world could do nothing about it.  The US required that OPEC members sell their oil for US dollars only, till 1999, when international jealousy caused release of the Euro.  Saddam immediately began selling oil for Euros.  The dollar began an inexorable decline in value from 87 cents per Euro to $1.50 in recent years.  To stanch this, Dubyuh invaded Iraq in 2003, forcing sale of Iraqi oil from the Euro to the Dollar, and the dollar decline stablized.  His CIA also started oil riots in Venezuela to punish Chavez for selling oil for Euros.  But you see the inevitable result - gasoline prices approaching $5 per gallon.  Don't believe me?  Just wait till the impending election comes to its juicy end.  See what happened at the 2000, 2004, and 2008 elections?  Gasoline prices plummeted, then spiked up afterward.  Now it has begun to fall.  So after the election, expect another spike upward.

And the President and Congress say "We can't do anything about oil and gasoline prices."  The whole idea of OPEC boiled down to increasing oil prices for US and European producers in exchange for letting Arab nations nationalize their production facilities.  Now they point finger at crazy foreigners and say "I can't help it if they jack up the prices."  Of course US oil producers reap the benefit while denying responsibility, and they collectively force auto manufacturers to prevent cars from running on Hydroxy gas from fractured water that would make transportation incredibly cheap.  And that forces the public to pay outrageous prices for transportation and everything delivered with expensive transportation.

If the US Government owned the natural resources (oil, gold, silver, platinum) in the ground, and THAT backed the dollar, then the dollar would retain its value, and Congress would not so flagrantly throw it away on no-win wars and useless social spending.  The dollar retained its value pretty well till the US began going into debts for idiotic wars and social spending.  You will note in the below chart that the Civil War (1866), HJR 192 (1933), and establishing oil in lieu of gold as the backing for the dollar (1971) coincide with the crash of dollar values.  And now record deficit spending brought on by the S&L failures and the collapse of Mortgage Backed Securities through predatory lending have caused further collapse.  Rothschild could not possibly have planned it better, could he? 

Inflation kills nations by destroying savings, investment incentive, and currency values.  Our inflation justifies cleaning the Congress and Supreme Court and Presidency out and repopulating them with legislators, justices, and leaders who have a clue about how to run a nation according to ideals of good government.  That will not happen with a largely ignorant, reprobate electorate, but it must happen some day. 

Ideals of good government require leaders, judges, and legislators to understand that charity has an intensely personal nature, that it starts at home, and becomes a community affair, not a state or nation affair. They must know that charity to individuals, groups, and nations NEVER becomes the province of government.  They must realize that government must never rob from one group so as to bestow largess upon another.

That right there constitutes the core problem I have with the Affordable Care Act and with the Social Security Act.  If government acted as a collector and investor of the money, and paid a return to the participants in the form of paid health care insurance premiums and old age/disability insurance that accumulates interest till used, I wouldn't consider it so bad.  But is is bad because the money, as a tax, goes into the Treasury, and then our reprobate Congress has no compunction about throwing it away on other projects instead of investing it responsibly.

To see an example of RESPONSIBLE money management, look at the State of Florida's Board of Administration, working for the CFO, an elected coordinate of the Governor and Attorney General.  The Board invests trust fund money in over 15,000 indexed securities or currencies, no more than 20% foreign, and the state legislature MAY NOT run a deficit budget.  Last year the Board earned 10.5% on approximately $150 billion of trust fund money, most of which consists of the Florida Retirement System money.  The FRS lays out about $8 billion for retirees, and even in bad years like last year it earned several billion.  In good years, it earns from 18% to 22%.  Within 20 years, it will have upwards of a trillion dollars to invest.  THAT's what I call good money management.

I doubt that the Roberts opinion on the Affordable Care Act will matter much in view of the massive resources Communists, Socialists, and liberals have poured into the Grand Theft of the resources of productive Americans to pay for the unproductive over the past century.  The fait accompli of free health care for the poor needs balancing with laws that proscribe (and make into a crime) the procreation of the stupid.  Most people of good sense seem to agree that unfettered capitalism results in monopolies that kill invention and competition and drive prices up, making slaves of the population.  And they seem to agree that unfettered predatory lending collapses homeowner equity and causes massive job loss. 

So we have laws to rein in the capitalists and make them more humane.  Philosophers call that "balance."  We need further balance to keep our sympathy for the impoverished and feckless from driving us to mindless spending to support them.  That balance will eventually come in the form of benign eugenics programs that reduce the percentage of stupid people in society who need free health care.  Maybe it will not happen in my nearly spent lifetime.

But, it will happen.

Bob Hurt

On 07/04/2012 11:10 AM, John Wolfgram wrote:
Previously, you posted an article that hit the nail on the head, GARY: Roberts led the court to sustain, even increase government power.  That is what conservative judges do in a crunch ... increase government power.  It is no accident that the consivertive wing always votes to sustain or increase government immunity from accountability ... and the liberals vote to liberate the citizen from government cases that directly deal with those issues.    The only justice to ever really address the immunity issue, sovereign immunity was surrendered in the plan of the convention, was Brennan.
It is consistent to have broad ranging government power as in Obamacare and government accountability for the errant use or abuse of that power.  But government already has the immunity in place to accept the increase of power and abuse it with impunity, thanks to the conservative wing; i.e. Rehnquist and Edelman v Jordan (about 1975) and that line to date.  Funny how Roberts is a Rehnquist protege. 
Thus, the fact is that most "conservative" Justices, and even the "libertarians" are in fact neither conservative nor libertarian; they just give us conservative and libertarian tidbits while stealing the main themes of the Constitution as it is written.  (The "Liberals" arn't much better.) 

From: Gary Zerman
Subject: RE: [Lawsters:12105] Chief Justice John (Benedict Arnold) Roberts
Date: Tue, 3 Jul 2012 16:39:19 -0700

And your take on the 2 commentary pieces was?

Re your comment, the operative words are left and but.  

There is a long, long, long, list (the other 2 branches [actually TWIGS, legislature, executive], the media [the fourth estate], academia, grad schools, business schools, law schools, lawyers, the ABA, the military, citizens,  etc.,) that all had/have a duty to hold government accountable.  And yes, for the most part that have not done their duty and failed.

But the one group/entity, who has the specific task to be the gatekeeper, the final backstop, to uphold the Constitution and defend our rights - is the judges/judiciary.  Hence the statement.

Freedom is not free, so of course WE are responsible for the government we let happen.

Fact is, though most Americans are tourists in their own country and have taken a permanent vacation from their civic duties and to hold their government officials accountable.

Recall where repeatedly I have quoted Justice Brandies:  The most important political office is that of private citizen.  And, If we desire that the law be respected, we must first make the law respectful.

And Justice Jackson:  It is not the function of the Government to hold the citizen accountable, it is the function of the citizen to hold the Government accountable.

I have made constant reference to the book LIFE THE MOVIE:  How Entertainment Conquered Reality.

And how many times have I warned that, Our biggest problem is that we tolerate lying to such a high degree, the corollary being that if we tolerate lying, then the truth does not matter much, and if the truth does not matter much, we're lost.

Yes, for the most part, we are to blame, and yes we have been willing dupes.

We forgot the lesson of George Orwell 1984 - and allowed Big Brother over limited government, and then allowed it's evil twin, Big Corporations.  And they have worked hand & glove, with the Banksters, to disassemble the nuts & bolts of our communities. 

Love the country, can't stand the government.

Be sure to Fly your flag this 4th, just make sure it's upside down.  GLZ.


Sowell: Judicial Betrayal

By Thomas Sowell July 3, 2012

...The Chief Justice probably made as good a case as could be made for upholding the constitutionality of ObamaCare by defining one of its key features as a "tax."

The legislation didn't call it a tax and Chief Justice Roberts admitted that this might not be the most "natural" reading of the law. But he fell back on the long-standing principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of "deference" to the legislative branch of government.

But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious, that ObamaCare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?

...There are many speculations as to why Chief Justice Roberts did what he did, some attributing noble and far-sighted reasons, and others attributing petty and short-sighted reasons, including personal vanity. But all of that is ultimately irrelevant.

What he did was betray his oath to be faithful to the Constitution of the United States.
...Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath -- and retaliation -- of those in Congress who have been railing against Justices who invalidate the laws they have passed. Many in the media and in academia have joined the shrill chorus of those who claim that the Supreme Court does not show proper "deference" to the legislative branch of government.

But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.





Napolitano: A Vast New Federal Power

By Andrew P. Napolitano July 3, 2012

If you drive a car, I'll tax the street,
If you try to sit, I'll tax your seat.
If you get too cold, I'll tax the heat,
If you take a walk, I'll tax your feet.
— The Beatles in "The Taxman"

... The reasoning underlying the 5 to 4 majority opinion is the court's unprecedented pronouncement that Congress' power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility — all of which the statute says it is — but rather is an inducement in the form of a tax.

The majority likened this tax to the federal taxes on tobacco and gasoline, which, it held, are imposed not only to generate revenue but also to discourage smoking and driving.

The statute is more than 2,400 pages in length, and it establishes the federal micromanagement of about 16 percent of the national economy. And the court justified it constitutionally by calling it a tax.

...The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law's most fervent supporters did not make or anticipate the court's argument in its support. Under the Constitution, a tax must originate in the House (which this law did not), and it must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing. In all the history of the court, it never has held that a penalty imposed for violating a federal law was really a tax. And it never has converted linguistically the congressional finding of penalty into the judicial declaration of tax, absent finding subterfuge on the part of congressional draftsmanship.

I wonder whether the chief justice realizes what he and the progressive wing of the court have done to our freedom. If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.

Even The Beatles understood this.



Bob Hurt
2460 Persian Drive #70
Clearwater, FL 33763-1925
(727) 669-5511
Visit My Home Page  ·  Email Me  ·  Visit My Blog
Learn to Litigate with Jurisdictionary (Buy Now)
Stay informed with Lawmen E-letter (Subscribe Free Now)
Donate to my Law Scholarship Fund.

Phone App
reads tag

No comments: