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28th June
written by Sean Noble











Supreme Court Chief Justice John Roberts turned the legal world upside down with his decision on Obama’s health care law that ruled that the individual mandate was unconstitutional under the Commerce Clause, but allowed it to remain as a tax provision.

This was an angle that no one saw coming.

Charles Krauthammer opines about what Roberts was thinking:

 Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.


More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine.


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  1. David Drage
    29/06/2012 WATCH!

    Check out the video ‘Reality Check: If the Affordable Care Act is “a tax,” does that make the law invalid?’
    Obamacare Tax did not start in the House as required. Thus as a tax bill, is it invalidated? Taxes.. House Respnsibility?

    Any Constitutional Law Experts out their?

  2. David Drage

    I heard on the radio the morning from a constitutional lawyer at the American Center for Law and Justice Jay Sekulow who litigates at the Supreme Court and some at the World Court that by 2016 every middle class family will inherit a tax of $2100-$2200 a year strictly on this bill and within three years of implementation the fines are $675 to $695 somthing like that for noncompliance and they will take it from any IRS refund check or if need be take it straight from your bank accounts. Young adults will be required to pay in full regardless of care necessity.
    I heard from two seperate sources including Jay up above that that number of new IRS agents hired strictly to enforce this is 16,000…BW
    Dave – Check this out…
    > I certainly agree with the poker/chess analogy. I think the real result of Roberts decision was to throw the debate out of the courts and back to Congress and the people, where it belongs. And now, BHO is on the hook along with all his minions in Congress. I think the July 11 repeal vote will be critical for many Dems who don’t want to have to go on record now about where they stand on this tax increase and monstrous bill.
    > All that, and the Dems can’t complain that 5 white men appointed by GOP presidents screwed the people.
    > Pretty slick.
    > B/
    > I got this one last night from a friend of mine who knows
    > Congressman Dana Rohrabacher (R-CA) quite well. The
    > Congressman had sent it to him and indicated that he
    > agreed with Erickson. I’m beginning to think there was
    > method in Roberts’ madness myself

    > Subject: REDSTATE: John Roberts

    > Here is a completely different view about John Roberts.

    > Subject: REDSTATE: John Roberts
    > Dear RedState Reader,
    > As you have no doubt heard by now, the Supreme Court largely upheld Obamacare with Chief Justice John Roberts writing the majority 5 to 4 decision. Even Justice Kennedy called for the whole law to be thrown out, but John Roberts saved it.
    > Having gone through the opinion, I am not going to beat up on John Roberts. I am disappointed, but I want to make a few points. John Roberts is playing at a different game than the rest of us. We’re on poker. He’s on chess.
    > First, I get the strong sense from a few anecdotal stories about Roberts over the past few months and the way he has written this opinion that he very, very much was concerned about keeping the Supreme Court above the partisan fray and damaging the reputation of the Court long term. It seems to me the left was smart to make a full frontal assault on the Court as it persuaded Roberts.
    > Second, in writing his opinion, Roberts forces everyone to deal with the issue as a political, not a legal issue. In the past twenty years, Republicans have punted a number of issues to the Supreme Court asking the Court to save us from ourselves. They can’t do that with Roberts. They tried with McCain-Feingold, which was originally upheld. This case is a timely reminder to the GOP that five votes are not a sure thing.
    > Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach. In so doing, he has affirmed the Democrats are massive taxers. In fact, I would argue that this may prevent future mandates in that no one is going to go around campaigning on new massive tax increases. On the upside, I guess we can tax the hell out of abortion now. Likewise, in a 7 to 2 decision, the Court shows a strong majority still recognize the concept of federalism and the restrains of Congress in forcing states to adhere to the whims of the federal government.
    > Fourth, in forcing us to deal with this politically, the Democrats are going to have a hard time running to November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them a vote for keeping a massive tax increase, let them try.
    > Fifth, the decision totally removes a growing left-wing talking point that suddenly they must vote for Obama because of judges. The Supreme Court as a November issue for the left is gone. For the right? That sound you hear is the marching of libertarians into Camp Romney, with noses held, knowing that the libertarian and conservative coalitions must unite to defeat Obama and Obamacare.
    > Finally, while I am not down on John Roberts like many of you are today, i will be very down on Congressional Republicans if they do not now try to shut down the individual mandate. Force the Democrats on the record about the mandate. Defund Obamacare. This now, by necessity, is a political fight and the GOP sure as hell should fight.
    > 60% of Americans agree with them on the issue. And guess what? The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground.
    > It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.
    > *A friend points out one other thing — go back to 2009. Olympia Snowe was the deciding vote to get Obamacare out of the Senate Committee. Had she voted no, we’d not be here now.
    > Read my full thoughts here.
    > Sincerely yours,
    > Erick Erickson
    > Editor,

  3. Woody

    I’ve liked Roberts ever since he mouthed “that’s not true!” during the State of the Union. Beyond putting Obamacare back in the hands of the People, imagine the long term, wide ranging implications this decision (in its entirety) will have on other Federal vs State issues:
    Education: apply the Medicaid ruling to Federal mandates for Education–could it be argued that the Feds can’t withhold funding from a state for violating onerous Dept of Education regulations?
    Transportation: Can states now disregard EPA quackery and choose our own gasoline blends, dust abatement regs, etc.?
    It could have positive impact in so many areas, simply because it is based on good principles.
    The question of the day is will the Republicans do what it takes to propel them to power in November.
    The question of historical proportions really is this: Are there Conservative politicians out there who have the courage to buck decades of administrative rules and take back the power that belongs to the states?

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