Posted on 06/28/2012 3:46:37 PM PDT by neverdem
In today’s deeply disappointing decision on Obamacare, a majority of the Supreme Court actually got the Constitution mostly right. The Commerce Clause — the part of the Constitution that grants Congress the authority to regulate commerce among the states — does not authorize the federal government to force Americans to buy health insurance. The Court, by a 5–4 margin, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.
What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a “requirement” to buy insurance, it says that individuals “shall” buy it, and it levies a “penalty” on those who refuse. As the conservative dissent points out, these are the hallmarks of a “regulatory penalty, not a tax.”
The law as written also cuts off all federal Medicaid funds for states that decline to expand the program in the ways the lawmakers sought. A majority of the Court, including two of the liberals, found this cut-off unconstitutionally coercive on the states. The Court’s solution was not to invalidate the law or the Medicaid expansion, but to rule that only the extra federal funds devoted to the expansion could be cut off. As the dissenters rightly point out, this solution rewrites the law — and arbitrarily, since Congress could have avoided the constitutional problem in many other ways.
The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.
The Court has failed to do its duty. Conservatives should not follow its example — which is what they would do if they now gave up the fight against Obamacare. The law, as rewritten by judges, remains incompatible with the country’s tradition of limited government, the future strength of our health-care system, and the nation’s solvency. We are not among those who are convinced that we will be stuck with it forever if the next election goes wrong: The law is also so poorly structured that we think it may well unravel even if put fully into effect. But we would prefer not to take the risk.
It now falls to the Republicans, and especially to Mitt Romney, to make the case for the repeal of the law and for its replacement by something better than either it or the health-care policies that preceded it. Instead of trusting experts to use the federal government’s purchasing power to drive efficiency throughout the health sector — the vain hope of Obamacare’s Medicare-cutting board — they should replace Medicare with a new system in which individuals have incentives to get value for their dollar. Instead of having Washington establish a cartel for the insurance industry, they should give individuals tax credits and the ability to purchase insurance across state lines. Instead of further centralizing the health-care system, in short, they should give individuals more control over their insurance.
Opponents should take heart: The law remains unpopular. Let the president and his partisans ring their bells today, and let us work to make sure that they are wringing their hands come November.
“I’d be happier if those laws were repealed by this ruling but they’re not.”
Many of them probably could be on appeal...
Roberts’ decision is like the surgeon about whom it can be said that, “The operation was a success, but the patient died.”
That’s the problem—even when Republican Presidents try to appoint conservative justices to the Supreme Court, often either they turn out to be liberals (Blackmun, Powell, Souter) or they turn squishy (Roberts), whereas the liberals picked by Democrat Presidents always remain consistently liberal.
It is not Robert’s job to teach us a lesson. His job is to interpret the law as it stands and decide if it is constitutional.
The individual mandate was not constitutional and there was no severability clause, so the whole bill should have been thrown out. It is not Robert’s job to change mandate to mean tax just to try and pass the bill.
Bingo, this ruling has opened the door to revist the constutionality of much of the Great Society and FDR...
Roberts rewrote the freakin’ law. If that’s not the most flagrant example of legislating from the bench in the history of the court, then I don’t know what is.
So far as Romney being our great hope...
Romney is just more of the same. I guarantee we will get a stall, rope-a-dope, 4 corners obfuscation out of ANY Gop-E president. IOW, no different than if it were a Democrat.
America needs to get rid of its one party system.
When I started reading about Solyndra manufacturing solar panels that were more expensive than the Chinese competition I wondered: How can that make any sense? It made sense if by 2011 (when Solyndra and others began to unravel) the government could order the public to buy solar panels. If Democrats had held onto Congress in 2010 it might have happened.
Interesting background. I didn’t know that.
I’ve been utterly disgusting all day, after being sickened the other day with his rulings.
I sincerely believe this country has now crossed the line to where there’s no return.
What have you been smoking?
I’m like you.....digging around looking for that pony.
The Chief Justice's Gambit (Not as bad as we think??)
That's what Sean Trende seems to think. He's almost as good as Mike Barone as a political analyst, IMHO. We'll see how this stuff pans out. If it leads to reversing Wickard v. Filburn, and a host of other decisions, then it will have done a great deal of good, as long as Romney and the next Congress get rid of Obamacare.
“He’s voting the same way GWB would if he was a SCOTUS judge.”
So we can say with a straight face, It’s Bush’s Fault! In fact, we can go further and say that the fact that we have FUBO today is Bush’s Fault. Bush was the shits of a president and he had a lot of help from the so-called Republican Establishment in the Congress. People are still pissed off at the Republicans over the way Bush governed, and how he pissed away precious human (and monetary) treasure on a part of the world most people regard as a violent Islamic cesspool!
If Roberts was being sincere in his Constitutional analysis, all he had to do was (a) declare the law AS WRITTEN was un-Constitutional and that (b) in order to fix the law, Congress would have to pass a new version explicitly stating that the mandate was a tax. This would have forced Obama to persuade Congress that such a massive tax increase was in the best interests of Americans. Knowing that such a bill would never pass Congress, Roberts bastardized the law and declared that the mandate was something that it’s authors swore it was not. Roberts and the looney 4 have usurped Congress. He needs to be impeached.
If you look....you will also see that Roberts did work for AA & quotas for a private law firm that was advncing the Michigan cases. He’s a liberal.
Roberts gets this one incredibly wrong. One of the principal roles of the Constitution is to protect the rights of the people from laws legislated by lawmakers elected by a small majority of the people.
Under Roberts distorted thinking, legislators could deprive us of our right to free speech and the Court would have no role in protecting us from the political decision.
Your entire line of thinking is nothing but spin, since there is not even one fact to support it.
Notice how SCOTUS puts the magnifying glass to any law addressing criminals and thieves looking for a way to make it unconstitutional, but when it comes to protecting the innocent and the productive, hey, let’s seee if we can make this thing work somehow!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.