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July 01, 2012

SCOTUS Rule 44 Petition More Necessary As WH Chief Of Staff Denies ObamaCare Mandate Is A Tax

Another senior White House official concedes that the tax argument accepted by the Chief Justice was a fraud perpetrated upon the Supreme Court.

Never mind what the Supreme Court said — the White House is doubling down on its insistence that the individual mandate isn’t a tax.

Speaking on CNN’s “State of the Union” Sunday morning, White House Chief of Staff Jack Lew said the mandate penalty is not a tax and the Supreme Court ruling didn’t make it so. And in any event, he said, very few people will have to pay it.

“First of all, the law is clear, it’s called a penalty. Second of all, what the Supreme Court ruled is that the law is constitutional. Actually, they didn’t call it a tax. They said it was using the power under the constitution that permits it. It was not labeled,” Lew said.

The problem is, of course, that Chief Justice Roberts and the liberal wing of the Supreme Court held that ObmaCare is valid only because it is a tax on the American people. As Moe Lane points out, failure to accept that the penalty is a tax means conceding that ObamaCare is unconstitutional under the reasoning of the opinion that upheld the law.

When the law was passed, both Democrats in Congress and Barack Obama said it was not a tax -- then they argued in court that it was a tax. That constituted a fraud upon the American people -- and/or a fraud upon the Supreme Court.

Given that they are now back to claiming that it is not a tax, it becomes clear that the Obama Administration lied to the Supreme Court. Not only that, but the same folks now making the claim that it isn't a tax forget that the White House had the Solicitor General argue that ObamaCare was a tax.

As I pointed out the other day, there exists a remedy for Thursday's decision. Under the Supreme Court's Rule 44, a losing party may petition for a rehearing of the case within 25 days of the decision being made.

Rule 44. Rehearing

1. Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.

Now that the Obama Administration admits that its argument on the taxing power was not valid and that the penalty upheld as a tax is not a tax, it is incumbent upon the Supreme Court to correct the erroneous decision made last week. All it takes is five justices to grant the rehearing -- a number which must include one of those who was in the original majority. The obvious candidate for that fifth vote would be Chief Justice Roberts, who will undoubtedly wish to uphold the integrity and position of the Supreme Court within the American system of government. To do otherwise would be to inflict the sort of damage to the Court that Roberts apparently sought to avoid by voting to uphold ObamaCare in the first place.





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Comments on SCOTUS Rule 44 Petition More Necessary As WH Chief Of Staff Denies ObamaCare Mandate Is A Tax

I don't expect you can read Roberts' mind, but do you think he expected the Obama and to reject it as a tax and for the plaintiffs to reappeal as you state?
Quite intriguing.

|| Posted by Bobbi, July 4, 2012 12:49 PM ||

I'll be honest -- I'm acting on the assumption that Roberts switch on the tax question was a legitimate move based upon a good faith belief that the argument worked. Call it a "tie goes to the runner" reading of the taxation clause. That explains why the reasoning in his opinion is so weak -- it was a stretch to make that reading fit, but he did believe it fits.

Now, given the Obama Regime's abandonment of the taxation argument and insistence that the Supreme Court got it wrong by calling this a tax, I could see Roberts going along with the motion for rehearing. What's more, it would be possible for the matter to be handled in precisely the way the Montana campaign finance case was handed -- with no further oral arguments and a brief opinion explaining the reason for the reversal and affirming the conservative dissent as being correct.

Of course, the whole thing is a long shot. The last time such a petition was granted was during the first year of the Nixon Administration.

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