Cashin On The Constitution And Obamacare

Tyler Durden's picture

UBS' Art Cashin had originally intended to explore the scholarly give and take of both the opinion and of the dissent. Both have marvelous allusions to things like the Federalist papers and “original intent”. As he notes "a full reading is like a visit to the mind gym, a mental workout of the first order."

Art Cashin, UBS:

We were also hoping to revisit the original Marbury vs. Madison decision, which we write about every February 24th on its anniversary. (Justice Marshall did not recuse himself even though it was his failure as acting Secretary of State that set up the case.)

We had intended to write on the nuances of conflict around the rulings. The fact that the dissent was unsigned (a sign of disrespect for the opinion?). The fact that Thomas put in an additional separate dissent. The fact that Ginsberg refers to the multiple dissent as “the opinion” (was Roberts aboard when she wrote it?).

I was also going to explore the theory of many that Roberts was playing chess while the others were playing checkers. That, in the fashion of Marbury vs. Madison, he gave the President a favorable ruling, replete with handcuffs and a straight jacket.

The more I read the dissent, however, the more I saw the minority’s very evident concern that the Constitutions was being weakened. Here is the rather blistering conclusion of the dissent:

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available. The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.


The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union.


Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary. The values that should have determined our course to- day are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn.


In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.


The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

Wow! I encourage one and all to read both the Opinion and the Dissent. It is important to all of us. It will make my July 4th a very thoughtful one.

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DoChenRollingBearing's picture

This monster Obamacare must be killed.  What a travesty.

If that means Mitt, then I'm all for it.

mikla's picture

This is a misunderstanding.

These un-elected "philosopher-kings" do not have this authority.

They write an "opinion".  It is only "binding" (at some level) because people believe it.

No, in reality, it shall be rejected.

The public is defrauded, and these ranting-central-planners in some far-away-land will be demonstrated to be increasingly irrelevant.

History is replete with public rejection of their oppressive-super-structure, and "leaders" that usurp far beyond that authority which is granted.  The USA has a long history of civil disobedience.

We will see a much richer form of that history in the immediate future.

10mm's picture

"We will see a much richer form of that history in the immediate future".Really,what form will that come in?Im banking on "NOTHING" as a form from the sleepy,dumb downed,talk bullshit sheeple.

mikla's picture

If you believe you are paralyzed, then you are.

Agreed, it is a shame so many people want to give away all self-determination, self-authority, and self-respect.  They live in Detroit, Michigan.  They will happily march into the ovens.

However, most people will go about their lives without respecting nor granting deference to self-proclaimed central authorities in a far-away land.  If they want to see a doctor, they will go down the street and see one that does not subscribe to the bureaucratic nightmare.

In this sense, the imminent Sovereign (financial) default is merely a side-effect of political reality when people realize their (Federal) government serves no purpose.  (People will stop paying Federal taxes.)

"Hyperinflation" is the symptom for a lack-of-confidence in the monetary unit.  "Federal Government Collapse" is merely a side-effect when the States realize it does not serve them, and that also is imminent.

It is the same as the EMU:  Greece is only in the Euro because (at the moment) they think there is advantage to membership.  The moment it concludes the advantage does not exist, Greece is gone.

Ooops, I meant to say, "Germany".  ;-)

AldousHuxley's picture

Americans pay same rate of taxes as in Europe and THEY DON'T GET SHIT.



The Alarmist's picture

You can drive a stake through the heart of Obamacare, but you will never undo the vast expansion of Federal power to compel you to do anything they wish you to do. Roberts is a statist through and through.

pods's picture

That will be the thing still argued 30 years from now, if the government still runs things.

People bitch about the little thing, not the precedent and the flood gates opened.

Remember the little case over a wheat farmer and "interstate commerce?"

We barely squeaked by on that one this time.  Instead of further mutilating that fucked up clause, they instead opened another Pandora's box!

And now this case will be fodder for another round of mental masturbation between two pre-selected statists wanting to do more for you.


narapoiddyslexia's picture

In 30 years, the US will be nothing but a bitter memory in the minds of the few survivors huddling around the poles.

ndotken's picture

Anyone who expected the Supreme Court to declare the Obamacare mandated purchase of insurance law as unconstitutional knows absolutely nothing about the history of the court.

GernB's picture

That is my concern as well. As far as I can tell there is nothing government can't make you do through it's taxing power now. If the federal government can make you do anything then you are not free. It is simply a myth that the US is the "land of the free," we are only as free as the majority lets us be, and they have proven to be willing to sacrafice other people's freedom for the promise of freebes from the government.

John_Coltrane's picture

Seems like you're beinga bit a an Alarmist!  LOL  Anyway, consider this, statism didn't arise just now.  Its incremental and must be fought incrementally.  Start with a red state senate and presidency- repeal obamacare, block grand medicaid, and privatize medicare via vouchers.  Think of how much better off we would be in terms of deficits if people had fought against Medicare and Medicaid 35 years ago during the LBJ era.  There would currently be no fiscal deficits and the debt would be non-existent.  Not to mention the fact that medcal care would be a fraction of its current costs, people would have incentizes to stay healthy via  regular exercise and proper nutrition.  There's nothing so effective to bring down the costs of anything like having to pay with your own money.  Its always other people's money and the notion of entitlement which gets humans in such trouble.   

F. Bastiat's picture

Two practical steps:

1. Cut off cable service, eliminate TV

2. Trade some paper dollars for some gold and silver

Two small, but tangible steps that every American can take to fight back.  It adds up quickly.

francis_sawyer's picture

All you have to do is convert to Islam, say you now follow 'Sharia Law' & are now, therefore, EXEMPT from participating in the form of gambling (which health insurance represents, mandated or not)...

No biggie... Allah be praised!... (Don't worry ~ it's all a 'Duke Brothers' inspired $1 bet between God & Allah to see what those crazy humans would do)...

BigJim's picture

Just don't ever renounce your Islamic faith, as no doubt the supreme court will soon instate an 'apostate' tax too.

And do you know what penalty Islam subjects its apostates to?

The Alarmist's picture

Don't tell that to Big O.

Stoploss's picture

That's probably the plan, but we'll have to wait for the TV ads when the new reality shows kick off.

Azannoth's picture

As an Atheist I would have no problem accepting a bogus faith for the purpose of tax-evasion, too bad I don't have that option in Europe here it's the opposite if you're religious you get to pay church taxes(sic.) on top

SourNStout's picture

Romney-Care was the basis for Obama-care.


Mitt will solve nothing...He'll continue the expansion of govenment, while saying he'll decerease it. 

Politicians = Liars & Crooks 

How are memories so short! Obama lied to everyone to get elected...Mitt will continue his lies to get elected. 

The system is corrupted. Nothing will change...the top 10% will win continue its wealth gain. Middle class will be squezzed. 

Audit, Expose it, End it


Azannoth's picture

Yes and here are your options

1) If you're flat broke. The law stipulates that anyone whose income falls below 133% of the federal government's decreed 'poverty line' can receive taxpayer and Chinese-funded Medicaid.

2) If you're religion disallows it. There are a few recognized religions out there which are adamantly opposed to medical care. As such, people of these faiths are exempt from the individual mandate to buy healthcare coverage.

3) If you're incarcerated. That's right. If you're serving prison time, you are also exempt from the individual mandate.

Ironically, this means that convicted felons will have at least one freedom that the rest of the sheeple wandering around on the streets don't have.

Oh, there's actually one more exemption--

4) Expats. The law exempts any US citizen or resident alien who is not "lawfully present in the United States."

The Alarmist's picture

re #4, that is the exemptiion for illegal aliens ... expats are exempted a bit farther down innt the bill.

Grinder74's picture

"2) If you're religion disallows it. There are a few recognized religions out there which are adamantly opposed to medical care. As such, people of these faiths are exempt from the individual mandate to buy healthcare coverage."

Anybody know which religions specifically?

TAfool's picture

Old Order Amish are exempt

camaro68ss's picture

Supreme court ruled it relies on a tax for implementation, making it now a tax. According to the United States Constitution, all tax bills must originate in the House of Representatives. This law originated in the Senate, it is now unconstitutional null and void bitchez!


Comay Mierda's picture

i think there is a re-education camp for you


JLee2027's picture

I agree it's null and void.

But no one in power cares.....

newworldorder's picture

You may be right, -but .....

Since rule of law no longer matters today, why should Congress follow the Constitution.  As long as the citizens do not object who are we at ZH to complain?

Michael's picture

I'm voting for Obama.

The republicans under Bush got 8 years to rape, pillage, plunder, and enslave the taxpayer citizens.

Obama and the democrats will get their 8 year turn to complete the project. Tuff shit.

You better start focusing on the congress critters you need to throw out in the primaries and general election in November, and vote out at least 95% of them, and put in Liberty candidates.

Otherwise, well there is no otherwise anymore. The complete and total USA economic collapse is a 100% mathematical certainty. Too bad. Picking up the pieces will be difficult.

MFL8240's picture

All the people with green hair will vote for Obama.  No surprise!

FL_Conservative's picture

Yep.  Green hair and shit for brains!

mr_T's picture

Hahaha you still believe that two parties exist..

Mitt & Obama are from the same club.

1st time ever I do not vote..


Cruel Aid's picture

You have to vote.

Write in Daffy Duck and make a statement.

FL_Conservative's picture

It has nothing to do with the 2 party system.  Unfortunately, there is not a currently viable Ron Paul alternative.  All that will do is put the Marxist back into office.  I'll take my chances with Romney and just make sure my Congressman's and Senator's offices know me on a first name basis.

Michael's picture

What this country needs is a bigger enema. You get that no matter who you choose. I choose the D brand in the Whitehouse this time around.

Foe everything else, there's incumbent congress critter demise.

TheFourthStooge-ing's picture

FL_Conservative said:

I'll take my chances with Romney

All that will do is put the Marxist back into office.

FL_Conservative's picture

That's a remark I'd expect from a STOOGE.

Bob Sacamano's picture

We would likely agree over the patheticly little difference between Obama and Romney, but guessing which one is closer to Liberty it seems Romney might have the edge over the BHO.

ImnotPOTUS's picture

Only because, he is not in the drivers seat. Would make the same call in regard to BHO and McCainey last time?

Two sides of the same coin, don't throw away your vote, give it to the Libertarian at least this time. It won't make a difference this time, but you never know.

FL_Conservative's picture

I now know from experience of the tyranny that I will live through under Obama.  I'd rather take my chances that Romney will be better and complain like hell if he tries to do something I don't agree with.  Voting for "NONE" is NOT an option for those that give a shit what happens to this country. Maybe at some point enough people will realize that we need a "Ron Paul" type of President to get this country back to the Constitution, but they aren't there right now. Maybe in 4 years they will be.

pods's picture

I cannot believe you got three upvotes for that.


Bollixed's picture

I can't believe people still think there is a legitimate counting of the votes in the 'election'.

FL_Conservative's picture

I can't believe your mom let you use her computer.

pods's picture

And a stunning retort.


TheFourthStooge-ing's picture

pods said:

And a stunning retort.

...the bipartisan believing brilliance of two-party trutherism.

TheFourthStooge-ing's picture

Bob Sacamano said:

We would likely agree over the patheticly little difference between Obama and Romney, but guessing which one is closer to Liberty it seems Romney might have the edge over the BHO.

The difference, if any, is so insignificant as to be dwarfed even by rounding error. A perfect analogy would to place both of them on a stage at a debate and then argue about which one is closer to the sun.

John_Coltrane's picture

I think nearly everyone agrees that Bush was a traitor to capitalism and a warmonger-an embarrassment to those who voted for him  regret strongly.  Bailing out GM, AIG, the banks and TARP will live in infamy.  The Patriot act was/is a disgrace requiring repeal and elimnation of the TSA.  Only Ron Paul is consistent on these issues of liberty and free markets. 

However, the question to ask is who is more likely to sign a Paul Ryan/Rand Paul budget such as passed earlier this year in the house into law?  Who is more likely to repeal Obamacare?  These are small but important steps.    So, I've got to go with Romney on this one.  But unlike Ron Paul, I won't be donating or helping his campaign.

clagr's picture

I would gladly take 8 more years of Bush (where we all made more money!!) than another year of the destruction of Obama.

clagr's picture

I would gladly take 8 more years of Bush (where we all made more money!!) than another year of the destruction of Obama.