ObamaCare ruling is a mess with a message

by | Jul 2, 2012 | Notes

For anyone who naively thought the Supreme Court would render a clean and tidy decision on ObamaCare, Chief Justice John Roberts’ majority-of-one opinion should be instructive.

Rarely does the high court render an opinion that draws bright lines by simply applying the constitution as written. More often, the court’s opinion is sufficiently muddled that a future court in a similar case can arrive at any decision it desires simply by selectively quoting only the passages that support its desired outcome and ignoring those that do not.

Roberts did exactly that in finding ObamaCare’s insurance mandate unconstitutional under the constitution’s Commerce Clause: “[T]o permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

But next Roberts ignored the court’s precedent that distinguishes a “tax” from a “penalty,” as the dissenting conservative justices noted: “We have never held that any action imposed for the violation of the law is an exercise of Congress’ taxing power – even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.”

Roberts therefore concluded – and was joined by the court’s four activists – that the mandate that everyone purchase insurance could survive as a proper exercise of Congress’ power to tax.

Does it matter whether the mandate falls within Congress’ power to regulate commerce or the power to tax? In this case, it doesn’t. Only when future courts choose to follow or ignore Roberts’ attempt to corral Commerce Clause authority will we be able to evaluate the supposed silver lining of this obfuscatory cloud.

Several observers speculate that Roberts changed his position at the last minute after initially siding with the rest of the court’s conservatives who were prepared to strike down ObamaCare lock, stock and barrel. These observers site inconsistencies in the text of the conservative dissent that make it appear that their dissenting opinion was originally written as the majority opinion.

If so, was Roberts motivated by a desire to prevent the court from appearing too political – a concern that never deters judicial activists – or was he intimidated by the specter of President Obama campaigning against the Supreme Court, as FDR did after the court invalidated much of his New Deal? It’s doubtful we will ever know the answer.

In the wake of this mess, both the political and legal landscapes are intriguing.

Americans are left with the clear message not to expect the court to intervene to protect our freedoms – especially not after voters entrust the reins of power to Barack Obama, Nancy Pelosi, Harry Reid and their big government fantasies. Today more than ever, no one will protect our freedom if we don’t do it for ourselves.

If the voters want to reject ObamaCare, they must reject Obama come November. It’s as simple as that.

ObamaCare and its costly, coercive insurance mandate won’t be the foremost issue in the election, but it will play a more prominent role than if the court had thrown it out.

Moreover, the court’s decision will now serve to galvanize those opposed to ObamaCare’s budget-busting cost, both to Americans individually and to the nation as a whole.

If they win the White House and the Senate, Mitt Romney and the Republicans clearly have a mandate to repeal ObamaCare and replace it with something that respects personal, economic and religious freedom, that doesn’t drive us further into debt, and that moves America away from the European model of socialized welfare and toward sustainability.

Meanwhile, Barack Obama can spend these next few months explaining why he signed the largest middle-class tax increase of alltime in order to pass a health insurance bill that has driven costs higher for American families, exploded our national debt, and is supported by barely one-third of the public.


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The government forces those who sell pharmaceutical drugs to list the possible side effects, even if only a few people will suffer those side effects. Unfortunately, the government itself never tells us about the bad side effects of the things it prescribes.

— Thomas Sowell

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