Supreme Court Upholds Obamacare; John Roberts Rejects Constitution

by Mike on June 28, 2012

in Judicial Watch,Law,Politics

The Supreme Court further weakened the Constitution today when, by a vote of 5-4, they held that the personal mandate in Obamacare was constitutional.  Surprisingly, the “conservative” Justice who flipped to the liberals was not Anthony Kennedy, but rather Chief Justice John Roberts.  The tabula rasa is blank no longer.

The issue before the court was whether the mandate exceeded the scope of federal authority under the commerce clause in Article I, Section 8.  Proponents of the law argued the mandate was permissible because of a long line of authority (almost all of which was wrongly decided) holding  that even activity that minimally affects interstate commerce is subject to Congressional regulation.  Those of us who know how to read rightly disagreed by noting that the Constitution only provides Congress to regulate activity that is both (1) interstate; and (2) commerce.  Because someone who does not purchase insurance is by definition doing nothing at all, Obamacare’s mandate could not possibly a regulation of commerce.

Justice Roberts agreed with those of us who know how to read on the commerce clause issue.  Nevertheless, he held that the Obamacare survives constitutional scrutiny because the fine levied on those who do not purchase insurance is not a regulation, but a tax.  One issue before the court was whether the Court could hear the case due to the applicability of the Anti-Injunction Act.  In plain English, that statute states that the court cannot consider the constitutionality of a tax until the tax is implemented.  Because Obamacare’s fine is not yet in effect, if it was considered a tax, then the court could not decide the case at all today.

But Roberts was not to be deterred.  He decided he could decide the case today because under the Anti-Injunction Act, the Obamacare penalty was not a tax because Congress called it a penalty, not a tax.  In the next breath, he decided the penalty was a tax even though Congress called it a penalty and not a tax and therefore Constitutional under the taxing power, an issue that not briefed by the parties or ripe for review. In the process, Roberts did not identify the specific kind of tax the penalty is, something required by the Constitution and Court precedent.  As an attorney, I can tell you that if that doesn’t make any sense to you, it shouldn’t.  John Roberts wanted the result he wanted and because there are four other Justices on the Court who don’t give a damn about what the Constitution says, he got his way.

Some conservatives desperate to find a silver lining in today’s ruling are arguing that Roberts played the role of conservative genius today by holding that the commerce clause did not provide a justification for the law.  What that argument fails to recognize is that thanks to today’s decision, Congress is now free to regulate inactivity so long as the punishment for failing to comply is monetary.  If the punishment is going to jail, a regulation won’t work.  If the punishment is a fine, a regulation will work.  Congress can now do what the Constitution and Court says it cannot do so long as it calls it something else.  That approach is forbidden by the Constitution, but not by the Court.

Now the discussion has shifted to the upcoming election and why it is important to elect Mitt Romney.  While almost everyone recognizes that today’s ruling is helpful to the Romney campaign and underscores the need to elect Mitt Romney, I take little comfort in that.  The reason why we are passionate about politics is because we recognize the importance of protecting our constitution and the freedoms it protects.  If the only way to achieve electoral success is to undermine the goal we wish to achieve through electoral success, then fighting the political fight is pointless.  The Constitution lost today.  The country lost today.

Those are my thoughts on the merits of today’s decision.  Tomorrow, I will post my thoughts on Sandra Day Roberts.

Link to Full Opinion (WARNING:  PDF)

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June 26, 2013 at 5:29 pm

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Ryan June 29, 2012 at 7:42 am

What Roberts did initially reminded me of the line-item veto — taking part of a piece of legislation and rejecting it while keeping the parts he liked. I know the courts do this often, but it seemed so obvious in this case — clear cut judicial activism and a perfect example of legislating from the bench.

I also agree with the dissent, which held that early versions of the bill included tax language and that language was purposefully taken out of the final version, meaning that the “penalty” was never intended by Congress to have taxing power, as Roberts held it did.

Roberts is no conservative genius, he’s a judicial activist. I heard Pat Cadell trying to explain Roberts’ decision yesterday saying (to paraphrase) that Roberts must have gotten tired of all the uncomfortable looks from the libtard elite at the Georgetown parties.

A terrible too-cute-by-half decision will forever taint his career.


c matt July 2, 2012 at 4:47 pm

What that argument fails to recognize is that thanks to today’s decision, Congress is now free to regulate inactivity so long as the punishment for failing to comply is monetary. If the punishment is going to jail, a regulation won’t work. If the punishment is a fine, a regulation will work.

But what if the penalty for failure to pay the tax is jail? Congress would then not be penalizing you for the underlying inactivity, but for the failure to pay the tax.


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