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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Tue, 07/03/2012 - 13:58 | 2584603 DoChenRollingBearing
DoChenRollingBearing's picture

This monster Obamacare must be killed.  What a travesty.

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

Tue, 07/03/2012 - 14:00 | 2584614 kralizec
kralizec's picture

Whatever it takes.

Tue, 07/03/2012 - 14:26 | 2584732 mikla
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.

Tue, 07/03/2012 - 14:57 | 2584847 10mm
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.

Tue, 07/03/2012 - 15:10 | 2584877 mikla
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".  ;-)

Tue, 07/03/2012 - 15:34 | 2584970 AldousHuxley
AldousHuxley's picture

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



Tue, 07/03/2012 - 16:15 | 2585074 The Alarmist
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.

Tue, 07/03/2012 - 16:30 | 2585121 pods
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.


Tue, 07/03/2012 - 19:47 | 2585591 narapoiddyslexia
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.

Tue, 07/03/2012 - 20:32 | 2585668 ndotken
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.

Tue, 07/03/2012 - 18:26 | 2585436 GernB
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.

Tue, 07/03/2012 - 20:11 | 2585640 John_Coltrane
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.   

Tue, 07/03/2012 - 22:32 | 2585845 F. Bastiat
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.

Tue, 07/03/2012 - 14:40 | 2584786 francis_sawyer
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)...

Tue, 07/03/2012 - 15:43 | 2584987 BigJim
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?

Tue, 07/03/2012 - 16:16 | 2585076 The Alarmist
The Alarmist's picture

Don't tell that to Big O.

Tue, 07/03/2012 - 16:21 | 2585098 Stoploss
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.

Tue, 07/03/2012 - 16:33 | 2585130 Azannoth
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

Tue, 07/03/2012 - 14:56 | 2584846 SourNStout
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


Tue, 07/03/2012 - 16:17 | 2585078 Azannoth
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."

Tue, 07/03/2012 - 17:05 | 2585247 The Alarmist
The Alarmist's picture

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

Tue, 07/03/2012 - 17:53 | 2585356 Grinder74
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?

Tue, 07/03/2012 - 19:31 | 2585558 TAfool
TAfool's picture

Old Order Amish are exempt

Tue, 07/03/2012 - 14:01 | 2584615 camaro68ss
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!


Tue, 07/03/2012 - 14:04 | 2584637 Comay Mierda
Comay Mierda's picture

i think there is a re-education camp for you


Tue, 07/03/2012 - 14:09 | 2584654 JLee2027
JLee2027's picture

I agree it's null and void.

But no one in power cares.....

Tue, 07/03/2012 - 14:13 | 2584677 newworldorder
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?

Tue, 07/03/2012 - 14:18 | 2584713 Michael
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.

Tue, 07/03/2012 - 14:25 | 2584737 MFL8240
MFL8240's picture

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

Tue, 07/03/2012 - 14:38 | 2584788 FL_Conservative
FL_Conservative's picture

Yep.  Green hair and shit for brains!

Tue, 07/03/2012 - 15:19 | 2584919 mr_T
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..


Tue, 07/03/2012 - 15:52 | 2585008 Cruel Aid
Cruel Aid's picture

You have to vote.

Write in Daffy Duck and make a statement.

Tue, 07/03/2012 - 16:15 | 2585075 FL_Conservative
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.

Tue, 07/03/2012 - 16:50 | 2585206 Michael
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.

Tue, 07/03/2012 - 17:03 | 2585240 TheFourthStooge-ing
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.

Tue, 07/03/2012 - 19:30 | 2585551 FL_Conservative
FL_Conservative's picture

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

Tue, 07/03/2012 - 14:48 | 2584817 Bob Sacamano
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.

Tue, 07/03/2012 - 15:38 | 2584977 ImnotPOTUS
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.

Tue, 07/03/2012 - 16:07 | 2585050 FL_Conservative
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.

Tue, 07/03/2012 - 16:36 | 2585147 pods
pods's picture

I cannot believe you got three upvotes for that.


Tue, 07/03/2012 - 17:22 | 2585287 Bollixed
Bollixed's picture

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

Tue, 07/03/2012 - 19:31 | 2585557 FL_Conservative
FL_Conservative's picture

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

Tue, 07/03/2012 - 21:20 | 2585737 pods
pods's picture

And a stunning retort.


Tue, 07/03/2012 - 22:00 | 2585794 TheFourthStooge-ing
TheFourthStooge-ing's picture

pods said:

And a stunning retort.

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

Tue, 07/03/2012 - 17:05 | 2585246 bobnoxy
bobnoxy's picture

You're an idiot. No shit. You're living under tyranny under Obama? And then you're going to complain like hell whe Romney fucks everything up like your hero Bush did? Yeah, that's working really well for you now, isn't it?

Good grief. How do you manage to eat your food without coaching?

Tue, 07/03/2012 - 17:26 | 2585289 akak
akak's picture

Bonoxious back at it again!

You are, of course (and no surprise), just another deluded adherent of the government and mass media-inculcated, pro-Establishment programming that would have you believe that one of the two equally corrupt and statist teams is better than the other.  In reality, it is just a bad cop/bad cop setup.

We did live under tyranny under Bush, we do live under tyranny under Obama, and we will live under tyranny under the Romnoid.  Because each of them, after all, are from the same ONE party of control, the Oligarchic Status-Quo Party.

Tue, 07/03/2012 - 17:36 | 2585315 bobnoxy
bobnoxy's picture

You gotta admit, the shot was there. Somebody had to take it.

Tue, 07/03/2012 - 19:38 | 2585569 FL_Conservative
FL_Conservative's picture

So exactly HOW are you going to waste your vote, dumbass?  You are at least 18, aren't you?  It's hard to tell based on the lack of logic in your posts.

Tue, 07/03/2012 - 22:04 | 2585803 TheFourthStooge-ing
TheFourthStooge-ing's picture

FL_Conservative asked:

So exactly HOW are you going to waste your vote, dumbass?

There are only two ways for him to do that: voting for Obama or Romney.

Do NOT follow this link or you will be banned from the site!