Some Thoughts on Chief Justice Roberts and the Supreme Court's ObamaCare Ruling

One of the most significant news stories of the year occurred on June 28, when the U.S. Supreme Court ruled to uphold ObamaCare as constitutional by 5-4.  Unfortunately, it happened one day before I left on a vacation for more than two weeks without Internet access, so I didn't have the chance to comment on it at the time.  This week, a friend sent me a column from a Florida newspaper by Jack Tymann entitled "Chief Justice John Roberts - Brilliant" and asked for my thoughts about it.  Not surprisingly, I ended up writing him a long response which I have decided to post on the blog as well.

I strongly disagree with most of what Tymann wrote.  The one thing I agree on (other than obviously agreeing that it was a good thing the Supremes denied the feds the right to pull the states' Medicaid funding over failing to participate in ObamaCare) is that the ruling has the potential to help Romney in the presidential race, because it gives him the opportunity to point out that Obama was responsible for one of the most massive tax increases ever, according to the Supreme Court ruling.  And obviously, I strongly want Romney to win.  But not at the expense of the Constitution.

The author is claiming this was some kind of brilliant political calculation on the part of Justice Roberts.  Well, I say that it is not the job of Supreme Court justices to make political calculations.  Their job is to interpret the laws in accordance with the Constitution and leave the political calculations to the politicians.  ObamaCare is a truly awful law that violates the Constitution.  It forces people to purchase a product (government-approved health insurance) by means of a coercive penalty enforced by the IRS.  There is no way that can be squared with the individual liberty and strictly limited government guaranteed by the Constitution.  The individual mandate was not designed as a tax, but as a penalty.  Obama and the Democrats explicitly declared it was not a tax.  How can someone be taxed for not doing something?  People are taxed for buying something, or owning something, or earning something.  You cannot be taxed for an absence of activity.  That is utter nonsense.

I think Roberts knew full well that both based on the language and intention of the law and based on the nature of the mandate, ObamaCare was not a tax.  But he wanted to uphold the law to "preserve the reputation of the court" and avoid a decision that seemed politicized in an election year.  Maybe he was hoping Obama would stop attacking the Court.  So he decided to literally change the law and twist logic beyond recognition to turn the mandate into a tax.  This explains perhaps why he initially sided with the four conservative justices in striking down the law, but later changed his mind.  He thought he had found a clever way out that would enable him to avoid striking down the law while at the same time making it easier politically to overturn the law. 

I think Roberts is very far from a hero.  I think he's a pathetic squish who sold out his principles and the Constitution in order to avoid criticism and appear "bi-partisan."  There is no way this law can be squared with our Constitutional freedoms.  If government can compel us to buy a product of their choosing, there is no limit to what they can compel us to do.  It doesn't matter what Constitutional clause they use to justify it.  So what if Roberts said ObamaCare was unconstitutional under the Commerce Clause?  What does that matter if it's constitutional under government's power of taxation?  The power to tax can be made just as unlimited as the power of regulating commerce.  I like how Fred Thompson described this decision as "a result in search of a rationale."

What is truly scary is that this decision removes the best hope that this terrible law will be repealed and our country will be saved from socialized medicine.  I think the likelihood that this law will be overturned legislatively is not great.  First of all, Romney must win the election, which is far from certain.  Secondly, the Republicans must take control of the Senate, which is also far from certain.  Third, even if Republicans gain the majority in the Senate they will have to contend with the filibuster, which may make it difficult or even impossible to permanently repeal the law, at least right away.  Fourth, we have to assume that Romney and enough Republicans in Congress will stick by their principles and do what they say they will do rather than giving in to pressure from the media and the left or being fooled into some kind of a bogus compromise.  All these things must happen and happen quickly after the election, because ObamaCare takes effect fully next year and once it takes effect it will probably never be undone.  It would have been much easier if Roberts had just followed the Constitution and repealed the law, instead of playing his little political games.  So yes, I am far less optimistic than this author, and I think conservatives are deluding themselves if they think this is a victory for limited government and the Constitution.