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Chief Justice Robertsís Folly
National Review Online ^ | June 28, 2012 | The Editors

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.


TOPICS: Crime/Corruption; Culture/Society; Editorial; Politics/Elections
KEYWORDS: abortion; deathpanels; obamacare; obamacaredecision; obamacaretax; roberts; zerocare
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Is it because Roberts is off his meds, or is it because he's on meds to prevent seizures?
1 posted on 06/28/2012 3:46:43 PM PDT by neverdem
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To: neverdem

Now they can tax us for anything. Will you have to pay a special tax to own a gun? Will there be a special tax to vote? Of course they pick and choose who to tax and for whatever reason there is nothing objective in their methods. They could slap a property tax on just about anything you own. They can even tax you for things you don’t own or choose not to purchase. This is absolute insanity.


2 posted on 06/28/2012 3:51:35 PM PDT by formosa (Formosa)
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To: neverdem
The one argument that Roberts used to justify this disastrous law is the one that makes the least sense.
3 posted on 06/28/2012 3:52:21 PM PDT by WHBates
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To: formosa

Yep, if you don’t but a union made product your screwed.


4 posted on 06/28/2012 3:54:09 PM PDT by WHBates
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To: neverdem

I’m thiking the same thing. Now we can be taxed for not doing or buying something.


5 posted on 06/28/2012 3:54:09 PM PDT by e_castillo (Drill here drill now...)
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To: neverdem

If it is a tax, it’s a Direct Tax which is unConstitutional.

But we live in a post-Constitutional Republic.


6 posted on 06/28/2012 3:54:37 PM PDT by Tzimisce (THIS SUCKS)
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To: formosa

Belong to a church that frowns upon queer “marriage”?

Pay the tax, infidel!


7 posted on 06/28/2012 3:57:06 PM PDT by workerbee (June 28, 2012 -- 9/11 From Within)
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To: neverdem

This question about Roberts isn’t a mystery and there’s no conspiracy, you just have to think about it for a second. Presidents appoint justices that fit their ideology. Bush was pro-life (Roberts is), pro-gun (Roberts is), pro-marriage (Roberts is), pro corporate spending (Roberts is). He was also an illegal lover (Roberts is) and a big spender on healthcare laws (Roberts is). He’s voting the same way GWB would if he was a SCOTUS judge.


8 posted on 06/28/2012 3:58:01 PM PDT by PAConservative1
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To: neverdem

Regardless, he betrayed the Constitution and his actions, and those who sided with him are traitorous.


9 posted on 06/28/2012 3:58:09 PM PDT by nicmarlo
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To: Tzimisce
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.

And if that doesn't give you a warm fuzzy, I don't know what will!!!

/sarc

10 posted on 06/28/2012 3:58:58 PM PDT by workerbee (June 28, 2012 -- 9/11 From Within)
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To: neverdem

11 posted on 06/28/2012 3:59:28 PM PDT by tflabo (Truth or tyranny)
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To: neverdem
   The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it.

  If it's been 're-written' by the court to make it constitutional, then the original law (as written) must be unconstitutional.
12 posted on 06/28/2012 4:01:51 PM PDT by Maurice Tift (You can't stop the signal, Mal. You can never stop the signal.)
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To: workerbee

next we’ll be forced to buy solar panels


13 posted on 06/28/2012 4:02:18 PM PDT by Undecided 2012
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To: Tzimisce
If it is a tax, it’s a Direct Tax which is unConstitutional.

Roberts' opinion actually discusses the "Direct Tax" issue, and holds that only two things are a "Direct Tax": a property tax and a capitation. It also holds that this is not a "capitation," because that means only a flat tax on every person without exception.

14 posted on 06/28/2012 4:03:09 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: neverdem

I am sick to my stomach. This is a dark day for the republic.


15 posted on 06/28/2012 4:03:09 PM PDT by andyk (Go Juan Pablo!)
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To: neverdem

Someone with PhotoShop skills...please rework the old “Dallas” promo...replace Hagman’s face with the chief justice’s and caption it: “Who bought JR?”


16 posted on 06/28/2012 4:03:09 PM PDT by WestTexasWend
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To: neverdem

Roberts could have easily and justifiably ended at least on of the chapters of misery and cliff hanging uncertainty that has burdened this country for too, too long.

He manipulated what the administration and lousy congress and spinate swore was not a tax into being a tax for his convenience. Why? Only he and God know. His logic is so twisted and perverted that one quickly and easily is drawn to the conclusion that he acted in some self-interest.

There are so many trying spin this as good and justify Robert’s treason. I think they protest too much. I smell crap.

As for me and my house, may John Roberts rot in hell and go down in history as a traitor to the principles of freedom, the Republic and the Constitution. All three of these seem to be taking a long walk off of a short pier. I hope that he has a long and miserable life... a short one would be too good for him. If there is justice he will agonize and regret this decision for eternity.


17 posted on 06/28/2012 4:04:03 PM PDT by Sequoyah101 (You've been screwed by your government.)
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To: neverdem

It seems to me that as bad as the USSC upholding commiecare was, something really positive came out of it.

Most of the laws that come out of Washington that expand government and tramp on the 10th amendment are based on the commence clause. While it may be true that the feds can force us to buy toothpaste... There not going to be able to justify it with the commence clause, and they are very unlikely to want to call it a tax.

Taking away the commence clause crutch is going to make it very difficult for congress to justify the constitutionally of a large portion of the laws and regs that come out of Washington.


18 posted on 06/28/2012 4:05:15 PM PDT by babygene (Figures don't lie, but liars can figure...)
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To: neverdem

I’ve said this before. I hope Roberts burns in hell.


19 posted on 06/28/2012 4:06:48 PM PDT by dragonblustar (Allah Ain't So Akbar!)
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To: neverdem

Look this is judicial activism writ large. Roberts has no power to rewrte statutes. He is as lawless as Obama and should beheld in contempt by all thinking people.


20 posted on 06/28/2012 4:06:52 PM PDT by jwalsh07 (.)
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