John Roberts And Obamacare

It must be difficult for the middling Republican, residing within the Beltway; unsure of himself, goaded by vague attachments to pesky conservative principles, and, yet, desperate to be loved by the wall-to-wall leftists that surround him. 

Indeed, it did not take long for Supreme Court Chief Justice John Roberts to become another Republican casualty of the liberal pressure cooker. 

Confronted by Executive branch and media intimidation, Roberts decided to become a good little moderate swing vote and throw in with the liberal judges, upholding the Affordable Care Act or Obamacare.  In so doing, he saved President Obama and his horrendous legislation – and did great damage to his country. 

The phenomenon is well known.  So great is the desire by wobbly Republicans to be liked by the left and in particular the editorial pages of the New York Times, they are more than ready to jettison conservatism at the first hint of liberal umbrage.  That this drifting of ideology occurs only with conservatives is also well known.  Liberals, it seems, are rarely, if ever, haunted by self-doubt regarding their own judicial or governing philosophies - however destructive or unconstitutional.

It is understandable.  When one works in government, particularly in Washington, the air one breathes and the bourbon one sips is imbued with the wondrous essence of liberalism: in the bureaucracy, the media, the Academy, the language and assumptions are all scented with the alluring fragrance of eau de liberalism.

Our law schools, in particular, little factories of liberalism, mass produce liberal attorneys to inundate our courts with; they man the academic journals and review magazines that influence elites in law and government, including, no doubt, the justices of the Supreme Court.

And so what’s a squirrely conservative to do?  Why, abase oneself, grovel, appease, and drift left along with them.  Consider it a law of nature. 

The urge, however, of wobbly conservatives to twist their beliefs into unrecognizable shapes to satisfy liberal longings attained new heights in the Roberts ruling on Obamacare.  Indeed, Roberts engaged in legal wizardry, never before imagined, conjuring gifts and wonders for his newly christened liberal patrons.

The tragic element, of course, was that there were already four justices on board, including the unreliable Anthony Kennedy, who were prepared to declare the grotesque beast unconstitutional and banish it to the netherworld of failed liberal experiments.

Roberts, however, in his role as liberal shaman, cast a spell and transformed it, breathing life into the distended and festering thing when it should have been allowed to perish.

The key provision under review was the individual mandate requiring individuals to buy health insurance. 

While he agreed with the four dissenters (Kennedy, Scalia, Thomas, and Alito) that it did not pass constitutional muster under the commerce clause (as was argued by the administration), he ruled that it was constitutional under Congress’s “taxing power,” which is to say that the “penalty” imposed by the statute was actually a tax.

But it is here where the now acclaimed Roberts’ witchcraft was spun, for the actual statute passed by Congress designates it as a penalty and not a tax; the case argued by the Obama administration in the lower courts and again before the Supreme Court, described it as a penalty and not a tax.  Liberal pundits and lawyers called it a penalty and not a tax.  Indeed, Obama and the Democrats took great pains to avoid any reference to it as a tax, realizing it would otherwise not have passed through Congress. 

Only when it came before the Supreme Court, and in the mind of one judge, the chief justice, was it defined as a tax.

“To say that the Individual Mandate merely imposes a tax is not to interpret the statute, but to re-write it,” the four conservative dissenters from the Roberts opinion wrote.

And what kind of tax?  The Constitution allows the federal government to tax income or issue excise taxes, but nowhere does the Constitution give the federal government authority to tax non-activity (as in not buying health insurance).  So not only did Roberts rewrite Obamacare, he created a new tax out of whole cloth, completely unconstitutional and a dangerous precedent. 

To add further to the confusion, he also decided that while it was a tax and therefore constitutional under the federal government’s taxing power, it was not a tax in terms of the anti-injunction clause, which forbids lawsuits against taxes until they are actually imposed.

It was, in effect, a legal shell game.  Roberts had an outcome in mind and was determined to invent a way, no matter how contrived, to find Obamacare constitutional.

Conservative pundits spoke optimistically (and foolishly) of a “silver lining” in that he narrowed the interpretation or jurisdiction of the commerce clause; but this was only at the expense of expanding the federal government’s taxing power beyond its constitutional scope; this, he achieved, by crafting a new tax on non-activity.  Furthermore, five activist judges in some future case can easily stretch the commerce clause in pursuit of a particular agenda at anytime; they will be no more constrained by Roberts' reading on Obamacare than the  four current liberals were.  No, there was no “silver lining" here, only a dark, ominous cloud.

The law also cuts off all Medicaid funds for states that do not cooperate in expanding the program in the manner called for in the statute.  A majority of the justices including two of the liberals declared this unconstitutionally coercive on the states.  But rather than declare this provision or the entire law invalid, they decided that only the extra funds needed for the expansion could be cut off.  But that was not in the law.  Once again, Roberts and other judicial “legislators” simply rewrote it, which was not their role. 

And so why was Roberts, a brilliant man, so anxious to pass Obamacare, even to the point of incoherence?  Was he concerned that a 5-4 decision to strike down Obamacare would have tarnished his court as “partisan” or “political,” yet content to deliver a 5-4 decision anyway, only upholding the horrid thing, and in a way that damages the Constitution?  Was it a fear of criticism from liberal pundits, editorial writers, and Democrats?

It must have been, for his own obfuscations could not have escaped him.

Roberts follows in a long line of Republican-appointed Supreme Court Justices that do not rule as expected; rather, they rule as liberal activists.  Earl Warren, Harry Blackmun, Sandra Day O’Connor, and David Souter were other disappointments.  He now joins their ranks, another Republican more than ready to abandon principles to dodge liberal rancor.

But in avoiding the inevitable calumny, Roberts compromised himself and subverted the Constitution; he set enormously harmful precedent, burdened the nation with a disastrous law, aided Obama in his reelection efforts, and failed to do his job: which was not to curry favor with editorial writers and Democrats, but to uphold the Constitution...