How ironic that the judge many conservatives (including me) believed would provide a strong intellectual argument for overturning Roe actually ran to the left on Obamacare inventing a constitutional concept along the way. Thomas, Alito, Scalia, and even perianal swing voter Kennedy all agreed that Obamacare should be overturned. Apparently, for a while Roberts agreed. According to CBS News reporter Jan Crawford Roberts originally joined the four stalwart conservatives in rejecting the Commerce Clause argument and thus gutting Obamacare by stripping out the individual mandate.
But something happened on the way to the ruling’s release. Evidently Roberts started thinking more about the court’s legacy than the Constitution. He went on a grand quest to find a reason to be reasonable in the eyes of the Washington Press Corp and the rest of the mainstream media. After all, conservatives are supposed to be reluctant to overturn sweeping legislation that has been duly debated and consciencelessly passed by Congress. Roberts, like an NFL receiver hearing the footsteps of a rushing cornerback, knew he and “his court” would take a beating if they overturned Obamacare. So, he decided to lateral the ball and make something out of nothing. He would have been better served to simply acknowledge the nothingness of the team Obama argument and let the Affordable Care Act be stopped in its tracks.
I have read all the arguments coming from the right about how Roberts is playing chess while everyone else is playing checkers. His ruling has been called brilliant by some and innovative and slick by others. A kind of constitutional rope-a-dope to lure progressives into a corner on this case and then come out swinging with a knockout blow on the next big decision. Some believe the Commerce clause can now never again be used to justify the expansion of government power. Those who believe that underestimate the ability of the Left to disregard legal precedent in favor of their own twisted understanding of a law.
For example, in the Everson v. the Board of Education case, which became the basis for the modern understanding of the separation of Church and State, the Supreme Court ignored 150 years of precedent against the idea of separation and inserted a sentence from a letter written by Thomas Jefferson into the Constitution. If a bunch of liberals on the court can find a woman’s right to privacy in the Constitution and totally disregard multiple previous court rulings I am sure they will have no trouble ignoring this ruling.
Others say turning the Obamacare mandate penalty into a tax was a brilliant move that will henceforth and forevermore hamper the ability of Congress to pass overwrought legislation because they will have to admit it is a tax. But if the term tax were the automatic red flag it is being portrayed to be we would not be overtaxed, overregulated, and hopelessly in debt. Just as water always seems to find a way around any barrier as it heads for the lowest point Congress will always be able to find and promote another logical sounding reason to impose a tax.
Maybe the silver lining in this dark cloud of constitutional contortion is the provision that will allow the states to reject government mandated Medicaid without incurring a penalty. While a reassertion of federalism is a nice touch it is a poor tradeoff for allowing a program to stand that is clearly unconstitutional and that will, once fully implemented, bankrupt the country.
My favorite commentary on Roberts run to the Left comes from Jonah Goldberg of the National Review. Commenting on all the reasons why Roberts decided to run to the Left Goldberg writes, “What Roberts did is not in his job description. Whatever his motivation…whether it was to defend the Court’s reputation or his own, or if it was to deliver some ingenious slow-acting poison to the Nanny State that’s now hat justices are supposed to prioritize. If he’s the umpire he claims to be, he should be umping.”
I think the problem boils down to this. Instead of umping according to the rules Roberts redefined the strike zone to keep the pitcher who can’t throw strikes from feeling bad. By finding a phantom tax in Obamacare Roberts rewrote the rules and turned the IRS into the 2012 equivalent of the KGB. We are now left with only one recourse. We must elect Mitt Romney president and give him a clear majority in the United States Senate. If we fail, Robert’s run to the left leaves us running for our lives in the face of an all powerful, unrestrained, unconstitutional government.