John Yoo: Chief Justice Roberts and His Apologists

Some conservatives see a silver lining in the ObamaCare ruling. But it's exactly the big-government disaster it appears to be.

Justice Roberts's opinion declared that the Constitution's Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Roberts fled for Malta, supposedly to teach a class for two weeks. Maybe he doesn't plan on coming back.

U.S. Supreme Court Chief Justice John Roberts joked that he'll spend some time on an "impregnable island fortress"

What an inappropriate joke. Americans aren't laughing.

There’s a couple podcasts dealing with the Obamacare decision by John Yoo & libertarian legal superstar Richard Epstein that my fellow Freepers might be interested in. The first was done just hours after the Obamacare decision came down on 6/28; the second was done yesterday, 6/29, as part of a regular series that the two have done for Ricochet.com for some time:

1)(About the first half is with Epstein & Yoo on the decision; then other people join in.)
http://podcast.ricochet.com/ricochet-podcast-episode-125.mp3

2:
http://podcast.ricochet.com/law-talk-episode-27-kuhefaK4.mp3

And while I’m at it here’s the podcast done hours after the decision by David B. Rivkin, Jr. for the Federalist Society. He was one of the main lawyers involved in this case.

http://www.fed-soc.org/publications/detail/health-care-decision-nfib-v-sebelius-podcast

Epstein, Yoo & Rivkin are pretty unhappy. If you are too and you want to climb out of your deep despair, read this article by Randy Barnett, who is described by many as the intellectual architect of the case against Obamacare:

Randy Barnett says Roberts’ tax power argument is “lame” but “easily fixed”
http://www.freerepublic.com/focus/f-news/2901281/posts

Barnett thinks that the wins on the Commerce Clause, Necessary & Proper Clause, and Spending Clause have greater staying power than does Roberts’ “lame” expansion of Congress’ taxing power.

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