There is no silver lining: Justice Roberts’ despicable Obamacare decision

In March of 1937, in West Coast Hotel Co. v. Parrish erstwhile conservative Justice Owen Roberts suddenly began voting to support New Deal legislation. His change of heart was the beginning of what became known as “The switch in time that saved nine.” His sudden reversal was in direct response to FDR’s threat to pack the Court in the face of the Court’s resistance to the President’s sweeping progressive agenda. From that point forward the Constitution ceased to be a significant barrier to anything FDR wanted to do.

In the face of such attacks, Chief Justice Roberts voted to preserve the legitimacy of the court by voting to support Obamacare. To support his decision, Chief Justice Roberts chose to reached back 85 years to Blodgett v. Holden so that he can quote Justice Oliver Wendell Holmes: “the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” For it to have been so compelling for Justice Roberts to depend on it so strongly, one might expect that Justice Holmes’ edict must surely have come straight out of the Constitution, or at a minimum must have been simply “codifying” some long settled precedent reaching back to the time of the Founding Fathers. Actually, not so much. Justice Holmes was really only drawing on decisions that had been around for less than 20 years, starting with US v. Delaware & Hudson in 1909. In other words, Justice Holmes was claiming his actions were supported by settled law when in reality they were nothing of the sort.

This leads to something of a detour… The left is constantly suggesting that the country cannot possibly be governed by the words in a document that was written by a bunch of rich white guys 225 years ago. Imagine, television didn’t even exist then… The Constitution said slaves counted for only 3/5 as much as free men for taxation and representation purposes. Most people worked for themselves on farms and got their water out of wells and Virginia, the most populous state in the nation had a mere 747,000 people, 30% of whom were slaves. No way those old guys could have known anything about modern America.

The question I see in this case, however, is thus, if the 225 year old Constitution, which was ratified by each of the original 13 states, cannot be counted on to determine the limits of government power, what makes an 85 year old precedent voted on by 4 guys in 4 to 4 decision that much more compelling?

The author is wrong, and there are some very good conservative legal minds who say so. Roberts may not only have killed Obamacare, but he may have effectively gutted LBJ’s Great Society, and even severely undermined a lot of FDR’s New Deal that still hangs around America’s neck like a millstone.

To start with, he was facing a losing deal, as there is a strong likelihood that Kennedy was going to vote with the liberals, and said so, which meant that the liberals would have the majority, have upheld everything, and written a horrific majority decision that would have been devastating to the constitution.

However, Roberts pulled a fast one. One of the few ways in which a Chief Justice is different from the other Justices, is that *he* determines who writes the majority decision, even if he is not in the majority. But whoever he designates must be from the majority.

So, by joining with the liberals, sort of, he could designate himself to write the majority opinion.

Why does this matter? Because the liberals always vote in lockstep, and even if the decision supporting Obamacare totally undermined Obamacare, they would vote to uphold it. Because they are fools.

Kennedy, however, is smart enough to understand that Roberts undermined the decision, so he did not join the decision, and it wouldn’t have mattered if he did.

But what about the decision itself? Since FDR, the left has pushed through unconstitutional laws by using vague clauses in the constitution that the founding fathers thought were self-evident. These include the Commerce Clause and the General Welfare Clause. Because they were minor clauses, they do not have a lot of checks and restrictions to them.

But Roberts asserted that the Commerce Clause was *not* worthy of what was in effect a tax.

And the founding fathers knew all about taxes, so the power to tax is just loaded with restrictions, checks, safeties, etc. Which means that taxes are very hard to pass and easy to get rid of.

But it also means that a huge amount of laws since FDR that ride on the back of the Commerce Clause are now at risk for being overturned.

And Roberts also used a one-two punch of stating that the states could not be punished for rejecting more than the bare minimum of Medicaid. This lit up statehouses all over the US, and many of them almost immediately said hell no! to the feds demands to increase their Medicaid rolls.

This sucks a LOT of the life out of Obamacare, and when congress changes hands on the 15th of January, the Republicans are going to have a field day slashing Obamacare taxes right, left and sideways.

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