Seeing the protracted battle to hold back the unfolding destructive power of Obamacare, let’s remember that we did not need to be here.

Chief Justice John Roberts, targeted by a deliberate campaign of intimidation launched by Democrats from the President on down, joined with the four liberal Justices to uphold Obamacare.

Justice Roberts engaged in mental contortions to hold that the individual mandate exceeded Congress’ Commerce Clause power (agreeing with the dissent), but was constitutional under Congress’ taxing authority (joining with the four liberal Justices).  His was the swing vote.  While there were reports he originally intended to vote otherwise, and was swayed by the pressures, those reports never have been verified and probably never will be given the secrecy that attaches to Supreme Court deliberations.

The dissent called it:

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it…

Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry….

What the Government would have us believe in  these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution.  That carries verbal wizardry too far, deep into the forbidden land of the sophists….

The Court today decides to save a statute Congress did not write.  It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax….

The Court regards its strained statutory interpretation as judicial modesty.  It is not.  It amounts instead to a vast judicial overreaching.  It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect.  It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions,

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers.  But the Court’s ruling undermines those values at every turn.  In the name of restraint, it overreaches.  In the name of constitutional avoidance, it creates new constitutional questions.  In the name of cooperative federalism, it undermines state sovereignty…

The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.  Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

We didn’t need to be here.  Obamacare should have been over in late June 2012.

Do not be a party in any sense to the continuation of this law.  Playing along is not a victory, any more so than it was in June 2012.

My post at the time, June 28, 2012:

Stop the self-delusion

Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power.

To paraphrase Joe Biden, I have just four words for you:

BIG —— DEAL

If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….

I might be inclined to agree with you.

But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.

This was the hill to fight on for any conservative Justice of the Supreme Court.

Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same:  Until further notice Obamacare is the law of the land.

Sure, we now are motivated for November.  And maybe in the end we will get rid of Obamacare.

But that is then and this is now.  And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.

This is now, and today we should have been rid of this monstrosity.

We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.

So please don’t delude yourselves.  Today was a bitter loss because it was one we should have won.

 
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