Right Decision, Wrong Argument

John Roberts’s Taxing Logic

With Chief Justice John Roberts authoring the opinion, one in which he joined with the Supreme Court’s four “liberal” justices for the first time, the Court has upheld the constitutionality of the Affordable Care Act. In doing so, Roberts rejected the administration’s argument that the law’s “mandate” compelling all Americans to buy health insurance or pay a fine was well within Congress’s powers to regulate interstate commerce or was a “necessary and proper” means to carry out a larger regulatory scheme under Congress’s enumerated powers. Instead, the Court ruled that the mandate was constitutional on traditional, well-understood, and largely unobjectionable ground: Congress’s power to tax.

What makes this odd is that nobody actually thought it was a tax. When the ACA was passed and signed into law, both Congress and President Barack Obama said explicitly that it was not a tax and no lower court sustained the act on that basis. So what happened?

How the Court justified its decision surprised a good many people. Those who thought that the act should be struck down had argued that Congress had no power to compel people to purchase something they did not want, in this case health insurance. If the government could force you to buy health insurance, could it also force you to buy broccoli, Justice Antonin Scalia asked during oral arguments. If the ACA was upheld, this argument went, there would be nothing Congress could not regulate. Why couldn’t it require the purchase of vegetables in order to make all Americans healthier (assuming that they would actually eat them)?

Roberts’s dismissal of the Commerce Clause argument has created much speculation that the ruling, although a victory for the administration, lays the groundwork for restricting the reach of federal regulation in the future. This prospect clearly alarmed Justice Ruth Bader Ginsburg, who agreed with the final ruling but described the chief justice’s “essay” dismissing the Commerce Clause argument as “puzzling.” She asked why Roberts should “strive so mightily to hem in Congress’s capacity to meet the new problems arising constantly in our ever-developing modern economy? I find no satisfying response to that question in his opinion.”

One possible explanation is that after joining the liberal wing and upholding the ACA, Roberts may have felt it was important to mollify the conservatives on the Court and beyond by laying out a framework for limiting the expansion of congressional powers. “The individual mandate,” he wrote, “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional activity.”

Of course, the liberal justices disagreed vigorously. “Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year.... Given those far-reaching effects on interstate commerce, the decision to forgo insurance is hardly inconsequential or equivalent to doing nothing; it is instead an economic decision Congress has the authority to address under the Commerce Clause,” they wrote.

There is a familiar principle of Supreme Court jurisprudence that acts of Congress should be struck down only if the lack of constitutionality is clearly demonstrated. If there is any ground for sustaining the law, the Court must do so as long as that ground is based on an interpretation of the statute that is “fairly possible.” “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Roberts wrote, citing the 1895 Supreme Court decision in Hooper v. California.

Although the administration argued forcefully that the ACA was a legitimate exercise of the federal government’s regulatory powers under the Commerce Clause, it also argued that the individual mandate could alternatively be seen as a tax and that the law could be sustained on that ground alone. Essentially, Roberts accepted that line of argument, even though the ACA does not call the mandate or fine a tax. In this case such labels did not matter, wrote the chief justice. At the same time, Roberts noted that if the payment were really a penalty it would necessarily be outside of Congress’s taxing power. In what ways wasn’t it really a penalty? The majority opinion offered the following explanations. First, the amount of the payment was small and could never exceed the cost of minimal health insurance. Second, the act contained no “scienter” (intent to commit a crime) requirement, as penalties usually do. Third, the payment was collected by the Internal Revenue Service through the normal means of taxation (albeit with some limitations).

The hardest constitutional problem for Roberts and the majority was whether the payment was intended as a punishment for illegal conduct or as a revenue-raising measure. The Supreme Court has ruled in the past that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” Here, the question was whether the payment was meant to punish those who did not purchase health insurance. Roberts’s answer was Jesuitical: “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.... [The payment] merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance.”

A similar argument could be made about parking tickets. Even though the law requires you to put money in the meter when you park, there are no negative consequences to failing to do so beyond the ticket. You can simply choose to pay one way or the other. Of course, the parking ticket will cost you more than the meter but the analysis seems to be the same nevertheless.

If Congress’s power to tax was such an obvious basis for upholding the ACA, why was it so hard to see? Were the lower courts’ eyes wide shut? In fact, the basis was not quite as obvious as Roberts tried to make it appear. Neither Congress nor the president called it a tax (it would have been politically foolish to do so), and the conservative dissenting justices thought that ruled out the idea of upholding the law under the government’s taxing authority. They further argued that the Court had never held that penalties imposed for violating a law could be regarded as a tax, especially when the statute explicitly called the payment a penalty.

There was another hurdle Roberts had to leap in order to uphold the law under the government’s taxing authority. An old and somewhat obscure federal statute, the Anti-Injunction Act, prohibits any lawsuit “for the purpose of restraining the assessment or collection of any tax.” In other words, if you wish to challenge the lawfulness of a tax, ordinarily you must pay it first and then sue. Roberts got around this by saying that by not calling the mandate’s fine a “tax,” Congress signaled that it did not want the ACA to be covered by the Anti-Injunction Act. At the same time, Roberts nevertheless asserted that the Court itself was free to determine “whether the payment may be viewed as an exercise of Congress’s tax power.” Sleight of hand? The conservative dissenters thought so, calling Roberts’s reasoning a journey to the “forbidding land of the sophists.”

Given the forcefulness of the joint dissent on both the taxing power and Anti-Injunction points, it would seem easy for Roberts to join his conservative colleagues in overturning the law. The fact that he did not suggests that something else was going on. His failure to do so will undoubtedly be debated by scholars and politicians for decades. But perhaps Roberts, once a distinguished advocate before the Supreme Court himself, was simply living up to the commitment that he made in his 2005 confirmation hearing when he disavowed any political agenda and vowed to keep an open mind as a judge. “I will remember that it’s my job to call balls and strikes and not to pitch or bat,” he said. “If I am confirmed, I will be vigilant to protect the independence and the integrity of the Supreme Court.”

Whatever the reason for Roberts’s vote, it preserved the very heart of “Obamacare.” The purpose of the law is to reduce the number of uninsured—said to be more than 50 million—and thereby to reduce the costs of health insurance for all Americans. Equally important, the law forbids insurance companies from denying coverage to people with pre-existing conditions or from discontinuing coverage once people get sick. Although there might have been other ways to accomplish those goals, the insurance companies convinced the administration and Congress that coverage could not be expanded without the individual mandate. The healthy have to buy insurance if the unhealthy are to be covered.

In its deliberations, Congress looked at eight states that tried to enact comprehensive health-care coverage in the 1990s. Seven of the states did so without requiring universal acquisition of health insurance. The experiment failed in all seven states. In Kentucky all the insurance companies but one left the state; the only one that remained was state-owned. Only one state, Massachusetts, had a reasonably successful comprehensive health-care program. Why? Because under Governor Mitt Romney it put in place an individual mandate. Will this approach work on the national level? No one really knows, but at least we will now have a chance to find out. No knowledgeable observer denies the fact that there is a health-care crisis in this country or that fixing it should be a national priority.  

One other part of the Court’s decision received far less attention but in the long run may be the most significant and troublesome. An important part of the ACA entails the expansion of Medicaid, the federal program that already requires all participating states (today, all fifty) to cover health-care costs for certain discrete populations such as those with disabilities, the elderly, the blind, and needy families. The ACA will now require states to expand those categories to cover all individuals under age sixty-five whose income is below 133 percent of the federal poverty line, or just under $15,000. All those covered will be given a basic health-care package. The federal government will pay 100 percent of the costs until 2016. Eventually, the states will have to pick up 10 percent of the costs. Under the ACA, states that refuse to comply risk losing all of their Medicaid funding, not just the funding that will pay for broadening access to the program.

There is a concept in constitutional jurisprudence know as “commandeering.” Basically, it means that the federal government may not “commandeer” a state’s legislative or administrative apparatus for federal purposes. However, under the Spending Clause of the Constitution, Congress has the power to “pay the Debts and provide for the...general Welfare.” Under that power, Congress may grant federal funds to the states and in so doing it can make the states take “certain actions that Congress could not [otherwise] require them to take.” Today there are hundreds of such programs in addition to Medicaid.

If a state refuses to join the Medicaid expansion in the ACA, Congress has threatened to withhold not just the new funds, but all Medicaid funding. The only purpose of such a provision, the states argued, was to force them to accept the Medicaid expansion. On this question, Roberts, along with liberal Justices Elena Kagan and Stephen Breyer, switched sides and voted with the conservative justices. The financial inducement offered by Congress to expand Medicaid was so coercive, Roberts wrote, that it passed the point where coercion turned into compulsion. He called it "a gun to the head."

In dissent, Justices Ruth Bader Ginsburg and Sonia Sotomayor pointed out that Congress had not actually withdrawn funds from any state but had only threatened to do so. The five conservative justices found that the threat, which the secretary of Health and Human Services was empowered to carry out, is “well beyond the line, wherever the line may be.”

So far so good. But here is where the opinion gets interesting and troublesome. Roberts and the conservative justices held that although it would be unconstitutional for the HHS secretary to withhold all Medicaid funds from a state, she could legitimately withhold the new funds authorized by the ACA. In other words, the Court rewrote the Affordable Care Act to include a provision that Congress never authorized or approved. The power that the Supreme Court has arrogated could be very significant. It might permit the Court to rewrite spending legislation in ways that Congress never imagined and might permit the creation of new “laws” that Congress never enacted. It remains to be seen whether this is a one-time accommodation to permit the Court to get through a highly visible constitutional challenge or whether it signals novel things to come. Has Chief Justice Roberts given the conservatives a surprise present after all?

About the Author

Paul C. Saunders is Of Counsel in the Litigation Department of Cravath, Swaine & Moore LLP, and a Distinguished Visitor from Practice at Georgetown Law School.



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<<<<<<<<There is a concept in constitutional jurisprudence know as “commandeering.” Basically, it means that the federal government may not “commandeer” a state’s legislative or administrative apparatus for federal purposes. However, under the Spending Clause of the Constitution, Congress has the power to “pay the Debts and provide for the...general Welfare.” Under that power, Congress may grant federal funds to the states and in so doing it can make the states take “certain actions that Congress could not [otherwise] require them to take.” Today there are hundreds of such programs in addition to Medicaid.>>>>>>>>

Commandeering seems to have become a phenomenon seriously threatening the federal nature of American government.  It's reassuring to have it at least limited here.

Law is always political, yes?  It doesn't exist in the abstract - it's always created by people and enforced by people.  Its language always needs to be interpreted - it's never so clear that it leaves no doubt for any reasonable person as to its meaning.

When Justice Roberts asked his question about requiring the purchase of cell phones for the emergency care business, I followed his line of thinking (or thought I did) and concluded that he would uphold the ACA.  He had obviously thought about the question in advance, and the logic of his own question ends with the uniqueness of health care insurance: a tow truck driver (or a grocer selling broccoli) could leave the potential customer who couldn't pay empty handed; not so with hospitals and doctors.  Therefore (or so I thought Roberts would argue) the "mandate" is not a simple requirement to enter a market.

What is it, then?  I suspect the last word has not been written on whether the commerce clause supports Congressional action with respect to those whose participation in the market is indirect.  Perhaps the "mandate" and its "penalty" may obtain its propriety (one of Justice Kennedy's concerns) as a Congressional judgment to be collected.  So this is not really a "mandate" at all.  In the usual collections action, the debtor gets his product first, refuses to pay, and then a court orders payment.   But often the problem is collecting on the judgment before the debtor skips town.  With health care, the time sequence is reversed.  But at least the "penalty" serves to effect the collection while the debtor is still in town.


Firstly I disagree with a few points made in the essay:


1. Currently there are about 30 million American uninsured (at least legal American), not 50M.


2. Most of the uninsured are the "healthy, young, and wealthy", uninsured by choice, not the poor.  Poor people can receive medical insurance via Medicaid or currently state approved programs.


3. We have the best medical care in the world; consequently, we have an "insurance" crisis, not a "health care" crisis.


In regards to the concluding question, "Did Roberts give the conservatives a surprise", I will offer my thought(s) which is original to any I've heard from any of the pundits.


Allow me to start by saying that 20 minutes before the decision came down, I emailed one of my liberal friends and told him that this could be the worst day in American History (if found constitutional).


Funny thing: despite O'care not being struck down as unconstitutional, I was elated, immediately pegging Roberts as genius. My best guess for why Roberts did what he did was this. I believe he truly had a "Holy Spirit" moment. Many don't realize that Roberts and his wife are devout Catholics, attend a very orthodox Catholic Church, and are very prolife. His lawyer wife even does pro bono pro-life work (Feminists for Life -"Life" as in Human life).


I'm not a lawyer so I can't make any intelligent legal analysis, but it's does appear that Roberts may have well indeed found the "legal" wiggle room while at the same time, being almost like Christ when Jesus asked the accusers of the adulterous women, "Those of you who have not sinned cast the first stone." Like Jesus, Robert's "head tripped" just about, and perhaps, everyone!


Some of the legal scholars might argue that he damaged the Constitution. Perhaps so. But what would be more damaging to an already terribly divided country: a "Consevative/Catholic" court decided healthcare law, or a decision that not only throws it back to we the people, but one which exposes the bill for what it is, a tax and a lie.


If we vote Obama back in, we rightfully not only own it but deserve it. As Catholics isn’t that what Jesus would want free will? To quote Abe Lincoln: If destruction be our lot, we will have done it to ourselves.


My best guess: Roberts had a true moment of pure  supernatural wisdom, that which is only possible by grace, obedience, and full communion to the faith.  And like Jesus, politically neutral with a compass pointing true North. 



For many of us Americans - those struggling to be the kind of Catholics you're sure Jesus would want us to be - we already "own it" and its "deserving" character is long over due. As a generally healthy small business person with a pre-existing condition that had me declined for traditional health care I had the option of a State program that had me paying 12X what I pay now for Medicare. A separate policy for my spouse was required - she got coverage because we had for years paid out of pocket to get the level of care we believed we were worth of - our physician could not provide that coverage and work within the conventional health care system.

If you've been spared the burden of under-insurance, or arbitrary cancellation, or shabby treatment or deferred medicines or any of a large list of American healthcare indignities they you are a truly fortunate person. There are many of us who know first hand that American Health Care quality is far from being in line with its costs.

As for your devout Chief Justice, I doubt that he has gone a day without health care insurance or access to competent medical treatment. I can't imagine him worrying about the contents of every letter from his insurance carrier - that it might be an arbitrary cancellation notice (e.g. "we're closing up shop in your state after taking your premiums for 15 years - good luck").

If you are confident that your hero Roberts is "justice neutral" then I hope you never find yourself in genuine economic distress (e.g. paying for yet another avoidable war in the Mideast to buck up the interests of big oil - or something equally tacky like having your 401K wiped out by a fast-buck pirate atop a Wall Street Bank).

As a veteran I find grace of the type you describe amidst the rehabilitation ward of a Veterans Hospital - I find it missing in the lack of adequate psychological care for every veteran or active duty service member who commits suicide under the pressure of what we "pay them to do." I find it in the commitment of a largely agnositc 64-year old surgeon on active duty in Afghanistan at FOB Lagman working to save the life of every war wounded person who shows up at the door - no check for immigration papers there!

If you think any Supreme Court decision made for the "worst day in American history," I can't even imagine "What Jesus would do."

For starters William I would like to say thank you for your service to this great country of ours. Every person deserves good  and affordable health care; most certainly our Veterans far more than our elected non serving Congress.  Congress  has the best health care in the country.

My point was not so much to debate the politics of Obamacare as much as it was to offer yet not another legal or political reason for why Robert's did what he did,  but possibly one of a different nature: God given Wisdom.

Certainly I could be wrong.  I don't know John Roberts personally but we do share a few key things in common.  In addition to being the exact same age, we are both products of the same Western PA town and Catholic childern of  faithers who worked for Bethlem Steel.  That makes both of us old enough to remember what it meant to be "Catholic" back then.  I can't really explain it as much as I "just know it", the kind of "instillment" one acquires from Catholic Parents from that era in that part of the country.

In lieu of throwing my best Obamacare arguments at you William,  I'd prefer that you and others  at least consider that perhaps Chief Justice Roberts can see what most can't; not only the potential consequences of Obamacare, but perhaps the consequequences of our elections, our "choices", in a country that has for the most part, gone Godless.

I agree that Americans needs a better 'insurance" system, only disagree that Obamacare is anything but the answer. 

One need only to do the math to understand that "Obamcare" does NOT, and can't,  equate to "doctor care."  Good luck to all of us on that point.  Besides, if it's such a great solution, why doesn't congress use it?   Trust me William, this isn't going to be "Medicare", or anything close, as we now know it.



In finding constitutional support for the ACA in the "tax clause" rather than the "commerce clause," Roberts seems more to be placating his right-wing, reactionary base than any contrived notions about imitating the Christ - a really goofy idea.  Politics ruled, not religious sentiment.

Roberts when faced with the opportunity to turn back precedent dating to the New Deal couldn't pull the trigger because he knew that he would have brought down a political firestorm on SCOTUS.  

If Roberts had sided with his Catholic ideological soul mates on the court - Scalia, Thomas, Kennedy and Alito - the political armies of the vast majority of the American people would be on the march calling for impeachments and massive reforms in the way SCOTUS does business.

Lest we forget, the ACA was passed by overwhelming majorities in the Congress and signed by President Obama.  Roberts has enough political acumen to understand that in an election year it would have been open political season on SCOTUS.  And given the right's swift denunciation of Robert's compromise on the ACA, Roberts must have realized that his supposed friends would certainly abandon him.

All politics is local!

In case you haven’t noticed, thanks to visionaries like Franklin and Eleanor Roosevelt and Lyndon Johnson, American society has essentially wiped-out dehumanizing poverty and destitution due to illness among the elderly. African Americans have a chance at equality after centuries of slavery. [A man of Barack Obama's color is now President!!!] Women have never been as educated or had such economic power as they do today.

The Affordable Care Act does not mean that Americans have ARRIVED when it comes to affordable healthcare. It means THE JOURNEY IS JUST BEGINNING!

It will take decades of trial and error experimentation and implementation until we get it right for the greatest number of people. Social Security still needs tweaking after all these decades – AS IT SHOULD. [How about income earners over $100,000 paying FICA at the same percentage of their income as most Americans??? This would make Social Security solvent well into the 22nd century!!!]

One the major revolutions yet to take place is a total remaking and redesign of how we educate and train physicians from a “fee-for-service” model (where doctors treat symptoms and disease, focused on pathologies) to a “primary care” model of doing medicine (where doctors are compensated for keeping patients “well,” focused on prevention). It will not be easy to change more than a century of medical training and practice. But it will have to happen if we are ever to achieve reasonable, affordable healthcare cost. [Cuba, with little resources, has a healthcare delivery system that far exceeds US health outcomes - even if it is "socialized medicine."]

Get over it! Middle class people now have the RIGHT to affordable healthcare. We will always have to fight to attain its best iteration for the vast majority of Americans. Life is a never-ending journey! [Didn't you read that storybook to your child?]

It’s called living the American Dream!

Fair enough Jim that you find even the thought of Divine Wisdom "goofy", especially in regards to a  nation changing bill that was passed unread, and by one "now voted out by the people" party. 

 The left have been trying to  take over health care in this country for the last 100 years.  It's the ultimate power grab/control which once in place, will be almost impossible to undo.  Next will come our guns; the last and only one more thing necessary after government healthcare.


Your attitude Jim is the epoitome of the left "never enough", as it's clear that Robert's couldn't have pleased you regardless of how he voted.  Being that this is a Catholic publication, and the fact that the Catholics more than any will be held accountable for the election (and destruction), of the Obama presidency, one would think it just might not be too much to ask to consider all of this beyond poltiics, dare I say even prayer.

Imagine that, actually giving "prayful consideration" to the election of our next president, the most important one in the lifetime of any of us.


Oh well, at least when that "American Dream" becomes "American Hell", all of your mindset will at least not be able to blame anyone but yourselves.  For those with "eyes to see", this is our second, and last chance.


So much for the brave men like William who once fought for our freedom, as it will be no more.


“Precisely in those places where the Marxist liberating

ideology (socialism) had been applied consistently,

a radical lack of freedom had been produced, the

horror of which now appeared before the eyes of the

world public opinion. The fact is that when politics

are used to bring about redemption, they promise too

much. When they presume to do God’s work, they become

not divine but diabolical.”

- PopeBenedict XVI



“[Socialism] is based nevertheless on a theory of human

society peculiar to itself and irreconcilable with

true Christianity. Religious socialism, Christian socialism,

are contradictory terms; no one can be at the

same time a good Catholic and a true socialist.”

-Pius XI, Encyclical

Quadragesimo Anno, 1931


@ Patricia:

The reason I am a “leftist,” as you put it, and not a reactionary right-winger is because I learned how to read when I was five years-old.

Here’s some more papal quotes for your edification:

“If you want peace, work for justice.”  Paul VI, 1972

And my personal favorite from arguably the greatest apostle since Peter and Paul, a genius of the human heart:

“Here I am at the end of the road and at the top of the heap.”  John XXIII

Despite your insult Jim, I can read just fine.  I also have no intention of getting into a papal quote war with you. 

As far as peace, and/or justice, Catholic Theology teaches that the answer to both is prayer.  Only prayer will bring peace,  and/or justice (the real kind that starts in the womb). As I pointed out, also the increased chance that by prayful consideration, instead of our "reactionay politics",  especially among Catholics, we just might get this election right.

The one debate I will be willing to enter into with you Jim is the meaning of Pope Paul VI's "justice."  Not sure you will want to go there!



@ Patricia:


A very wise, spiritual man once said to me:  Suffering, like its timid cousin, prayer, separates the essential in life from the inconsequential.


No insults intended - you ignored that I was referencing myself.  It seemed, given your papal citations, that you were someone especially deferential to authority who might appreciate the breath of papal sentiments.


As my sainted sixth-grade teacher, Sister Mary Adelaide, opined:  “Justice is as justice does.” [Which sounds an awful like Forest Gump, don't you think:  Stupid is as stupid does?]


Debate on all you want, Patricia.  Just don’t suck the life spirit out of Montini’s words.

Jim you can correct me if I’m off wrong, but I suspect what we disagree upon most is the Catholic meaning of social justice.  I’ll take a tiny leap and assume you believe that the ACA and or all or most things Obama are “just.”  If I’m true in my assumptions, then I would very much like to discuss/debate the justice of the popes/church teaching, especially in comparison to the “justice” of the democrats  and the policies of President Obama,  including of courese, Obamacare/ACA.

Interesting choice of words regarding Pope Paul VI,

Just don’t suck the life spirit out of Montini’s words

especially if like most dems, you are pro-choice (hope I’m wrong on that one), since “sucking the life spirit out” is at the crux of what is wrong with Obama policies, including the ACA.

@ Patricia:


I don’t know if there is a “Catholic meaning” of social justice - it is what it is.  Jesus said:  “By their fruits you will know them.” (Mt 7)  That is sufficient for me.


I don’t “believe” in the ACA.  I know from my practice of more than thirty years that the ACA is a vast improvement over what we presently got in providing healthcare insurance to the greatest numbers of people - near 40 million Americans presently have no healthcare insurance and thereby have no access to quality healthcare.


The ACA, as I said previously, is only the beginning of the journey.  Americans have a long way to go to achieving the fulfillment what I believe is our inalienable right to cradle-to-grave healthcare.


My sainted sixth-grade teacher, Sister Mary Adelaide, always impressed upon us that the corporal work of mercy of healing the sick was one of the more noble acts we could ever perform.  It has been a model for my entire adult life.  


To me, Obama is “just” a politician - with all his attributes and failings.  Barack Obama is, in my opinion, infinitely preferable to any member of the clown show that the Republicans paraded around in the primaries.  [For example, in just the last few days, Mitt Romney can’t even account truthfully about his record as a vulture casino capitalist at Bain Capital!] 


For sure, I admire the President.  I think his presidency represents some of the best of the American experience.  I have and will support his reelection.  But like all politicians, either civil or canonical, they need to be held to public account.  That is what elections are for.


And most definitely, based on my clinical professional experience, women do have the constitutionally protected right to privacy and choice over their bodies.  Women are after all fully human, fully children of God.


Truly Jim you make my head spin!

Thanks at least for being honest in admitting that, as I suspected, you are a moral relativist when it comes to Catholic Social Teaching.  How you can ignore countless papal encyclicals of CST, including the latest from Pope Benedict, and not recognize that indeed there is “Catholic meaning”, can only indicate that you like many other hijackers of the term, have no interest in what the Catholic Church actually teaches. 

If only you had the obedience to the teachings of the Magisterial that you appear to have towards your 6th grade teacher Sister Mary Adelaide, I suspect we wouldn’t be having this dialogue.  I hope you don’t mind that in addition to the good sister’s  lesson of the corporal work of mercy of healing the sick (actually one only need to visit the sick, but whatever), I offer you one of the 7 spiritual works of mercy, “informing the ignorant.”

For starters, and based on Catholic Social Teaching, all social justice starts in the womb, period.  If we can’t protect the most innocent and most vulnerable, everything else we try to pass off as “works of mercy” or social justice , is phony, at least in terms of any spiritual merit, and almost always self-serving. 

I assume you are an MD, which also baffles my mind that you could ignore the fact that an embryo, at any stage, is any less “fully human or fully a child of God.”  Even Peter Singer admits that it’s a human life (albeit he has no problem killing it).    And no, there is nothing “Constitutional” about “legal” abortion, but I digress.

Seriously, how can anyone of your intelligence honestly believe that  President Obama “represents some of the best of the American Experience?”  He’s the most divisive president in American history; pitting rich against poor, white against black, immigrant against citizen, religious freedom against Christians, and hard working business people against the entitled. 

You also mentioned that “African Americans now have a chance at equality after years of slavery.”  Are you aware that more African Americans came to America on a volunteer basis in numbers far exceeding the number of slaves?  Are you aware that the current unemployment rate for African Americans in the US today is 14.4 percent?  Are you also aware that over 50% of the black African American population in America has been aborted:  Black Genocide?  Do you think it’s a coincidence that most of the Planned Parenthood Clinics are in minority poor neighborhoods?  If anyone was going to make a difference for African Americans in this country, one would think, and hope, it would be from the first African American President.  For goodness sakes he didn’t even show up at the NAACP convention this week!  Not only does he takes their votes for granted, he’s too much of a coward to face them and have to defend his abysmal record.

And that’s all just for starters Jim.  My point of course, is that you appear to be blind to reality.  But then, you find the possibility of Chief Justice Roberts having a divine moment of Wisdom “a really goofy idea”, so I doubt you have much appreciation for anything beyond human intelligence; despite all of its failings. 

Someday you and others of your thinking will know how duped you have been by nothing more than a modern day sophist.  The only reality is in absolute Truth, the kind one knows from pray and obedience to the faith.  Too bad Sister Adelaide didn’t teach you that.







@Patricia To broaden Jim's comments. Justice is not what is owed to us, but what we owe others. Healthcare in all of the developed world is seen as a right, not a privilege. Only in the United States is bearing arms considered a right and health care a privilege. The answer is medicare for all, much like socialist Canada, Germany. the United Kingdom, Italy, France, Japan, Australia, Israel, Costa Rica, Spain, Portugal. Well I guess you get the idea. We pay twice as much to private companies making money on illness with poorer outcomes than all of the above listed nations and others not listed. What do you owe to other members of our national community in justice? Maybe these other nations have more of a Christian sense of what they owe the other than we do.

Addendum to last post.  Not sure why my links didn't work:


. http://blackgenocide.org/black.html



 (corporal and spiritual works of mercy/justice)

Hi Rudolph:

I don't disagree in the least  that all of us are owed basic/good healthcare.  My disagreement is with the "type" of healthcare, and the consequences, of Obamacare.  

Just  the way it was passed (Pelosi, "We need to pass it to know what's in it"), one party, and against the will of the American People should be the first red flag.  Without writing a book chapter the most simple way I can say it is that the ACA is a power/control grab, excessive taxation, for every "class" (as much as I loathe the use of that word in America), disguised in a "health care bill."

I'm simply sayin', "See it for what it is, the deceit, the lies, the tryanny,  and of course, the disregard for relgious freedom, innocent life, and the will of the American People (just last week, Henry Reid REFUSED to put it to senate vote; "congress knows best").  How could anything from those origins possibly end well?

That what I think Chief Justice John Robets knew/knows.  Just like God and His mercy, we've been given another chance.  It's up to us, "we the people", to get it right, which will be determined by how and from whom we elect into the office of POTUS.  It will forever define us not only as a nation, but especially as a nation where the Catholics, to whom more is given, have an obligation to "get it right."  Imagine if the 60 million Catholics in America actually voted, in accordance with church teachings?  

All Catholics have the free will to ignore it and "vote their emotions and politics", but rest assured, one day we will all stand naked in judgment, alone, before Truth Himself, with full awareness of the truth we failed or refused to see.

@ Patricia:

Please, don’t start with all that “moral relativism” rattrap.  It stinks of condescension.

Its major proponent on the world stage, Joseph Ratzinger, is one of the world’s greatest moral relativizers who points out the mote in the eye of Western democracies but can’t seem to locate the plank in his own eye (i.e., decrying secularization in Western democratic societies while aiding and abetting the serial criminal rape of hundreds of thousands of children by priests and bishops around the world).

Jimmy Carter once famously said [and he would know]:  “Life is not fair.”  Many times we, women especially, must make life choices from among very bad alternatives.  Sometimes those choices can’t ever be considered “good” choices – they are frequently only the “best” of bad choices.

As written in the Book of Deuteronomy:  “I place before you the blessing and the curse.  CHOOSE LIFE!”  Making choices is part of being human.

If you ever spent time with people making life and death decisions about their and their families’ health and wellbeing, you’d understand.

I don’t know where you got the idea that African Americans came to America voluntarily, but I wouldn’t try that crackpot idea out in mixed company.

I’m blind to reality?  Really, you think so?  Maybe.  We all have our selective perceptions.  Sister Mary Adelaide would often embellish Jesus’ famous quote from John’s gospel:

““I have come to bring you the Truth.  And the Truth will set you free.”  But first, it will make you miserable!””

BTW:  “Reality” is a social construction.  There is no such thing as “objective reality.”


Jim I almost have to wonder if anyone has challenged you on your Catholicism before, as my doing so appears to have struck a nerve. 

I make no apologies for defending the teachings of the Catholic Church, regardless of how “condescending” you may find it.  And for the record, it was Pope JPII, who first started the crusade against the Western Secular World on the “isms.”  Pope Benedict simply continued it, starting at JPII”s funeral.

Really Jim, your best argument is to attack (falsely I might add), Pope Benedict and the sex scandal, most of which took place in the 1950’s?  Do you honestly think he micro manages over a billion Catholics worldwide?  But if you like most of the dissenting Catholics (assuming you are a baptized Catholic based on your Catholic Schooling, but of course could be wrong), want to use the weakest and  most predictable  argument of Catholic dissenters, than I ask you how in love you were with the Catholic Church before the scandal broke in 2004?  My guess, not very.  In fact, the best attack dissenting Catholics had before the sex scandal was “mean nuns”, which interestingly, many have now become big fans of the “dissenting nuns.”  So go figure.

I don’t know what Jimmy Carter has to do with anything, but no, life isn’t fair, nor did Jesus ever tell us it would or should be.  Instead, he showed us the way to the cross, asked up to pick up ours and follow him, consequently, be co- participants in the salvation of souls.  Unfairness/suffering, have significant meaning.

As for “life and death decisions”, I’ve been there Jim, personally and professionally, so please don’t act like you are the only person who has ever worked in the medical profession.  Trust me, I’ve seen plenty.

I’m also sorry to inform you that you are incorrect about African American Immigrants coming to America.  Look it up.  Do you honestly think every black AA here today is a product of slavery?  For heaven’s sakes Jim, the number of black African American Immigrants surpassed the number brought/forced here  for slavery in the last century, making my point that if America was/is so horrible of a place, why would so many, as well as copious other minorities, choose to come here?  I just dug this up from the New York Times, so it has to be true, right?



All said, I do give you some kudos for suggesting that “maybe” you are blind to reality.  Just a suggestion, but you might want to read Frank Sheed’s “Theology and Sanity.”  It’s one of my favorite books.  Not that you would care what any of my favorite books are, but just sayin’.  The truth is, I have great compassion for those like you who don’t believe in objective reality, because that means you don’t/can’t, believe in God and His Truths, as all “reality” is based, objectively, on the truth of Jesus Christ.  Regardless if you believe it or not, only in that Truth can we ever have peace and a restful heart, a desire of every human being.   

Also and only in  that reality, can we be the best we can be, as individuals, as Catholics, as Americans, and last but not least, as voters.  November 2012, the ACA, and the direction/future of Amercia, hangs in the balance.  This is it: we get what we vote, for better or for worse, no mulligans! 


@ Patricia:

I can’t, and won’t respond to all your “off-the-deep-end” argumentation.   Suffice it to say that most of your pigeonhole assertions about my “Catholicism” are laughable on its face.

[Believe me, it is both offensive and odious to suggest that Africans willingly “volunteered” to submit themselves and their children to slavery.  Of course, African migration to the Americas is a complicated story.  But African Americans KNOW and UNDERSTAND how their families came to be in America.  Just ask them!]

I will respond to your false and specious assertions about the scandal of priestly rape, sodomy and sexual exploitation of children that has rocked the Catholic Church since 2002 because I have personal experiential knowledge.

Joseph Ratzinger, now B16, was the head of the Inquisition or CDF under his predecessor JP2.  From my days as the chair of the SF review board, I know that Ratzinger was in charge of coordinating the worldwide church’s policy and response to the scandal.  I know this because Ratzinger’s protégé, now Cardinal William Levada, told me so when he was archbishop of San Francisco.

Levada was the head of a delegation that went to Rome to confer with Ratzinger about changes that the CDF demanded in the so-called “Dallas Charter,” the response of American bishops to the tidal wave of the scandal in the spring of 2002.

Don’t take my word for it, any independent journalistic investigation of B16’s history and career demonstrates that Ratzinger is both complicit and corrupt in how he has conspired to cover-up and suppress justice for the rape and sodomy of children by priests and bishops.

THAT is just one REALITY or “Truth” Catholics must try to make sense of in the future! 

Patricia: If socialism is such a great evil, why is socialised medicine the only medical care us combat veterans who fought for this countries "freedoms" from the terror of "European style socialism" get? Also see Corinthians 2-8-8. I have yet to find any republican who will answer tis Q. 

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