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The Supreme Court’s Affordable Care Act decision was an unmitigated disaster for limited government and the sovereignty of the individual. Chief Justice Roberts shoehorned the ACA into the Constitution with reasoning too clever by half. Roberts’ majority opinion managed to be simultaneously incoherent and disingenuous. Above all else, it cannot evade a simple truth: the Supreme Court changed the meaning of a law after it was passed to construct a tenuous Constitutional cover for it. The American people were promised one thing, and given another. And now we stare squarely into a future of socialized medicine and unlimited federal power.
It did not have to be so.
Apologists for Roberts have offered that the Chief Justice was concerned for the overall legacy of the court. But this excuse is flimsy. First off, it was a 5-4 decision, so there was no judicial mandate here. If a 5-4 decision was lamentable on Citizens United for Democrats, it cannot be less so now for Republicans. No honest observer would say the court now appears less politicized (quite the contrary). Had Roberts joined with the other members of the court who supposedly share his conservative leanings, the day would have been won.
Another purported principle called upon to defend Roberts—deference to Congress—has obvious limits. The Supreme Court strikes down unconstitutional laws, all of which were presumably passed by Congress. It is the sole arbiter of the level of its legislative deference. SCOTUS defers to Congress, until it doesn’t, and it shouldn’t have this time around. All of this was merely more fatuous cover for the unjust majority decision.
If Roberts was truly concerned with showing due deference to the legislature, then shouldn’t he have taken the Congress at its word when it called the ACA a “penalty”? One would think legislators understand the language in their laws. President Obama certainly seemed emphatic in his previous denials of the ACA as a tax. At a minimum, the proper course of action for the court would have been to strike down the law and send it back to the Congress for passage as a tax. If the people’s voice should be heard, the people have a right to know what they are demanding first.
Despite the 5-4 ruling, this wasn’t really a close decision. The dissent was not over just the individual mandate component of the law, but the whole thing. The four justices of the minority wanted to strike down the Obamacare monstrosity in one fell swoop. The majority bent over backwards to find a way to make a law constitutional, and their colleagues thought the whole thing was a grave overreach. The only middle ground was agreeing that the Commerce Clause cannot regulate inactivity, which should have been obvious from the start, and was crystal clear during oral arguments. That the dissent was jointly signed may have been an indication that the conservatives in the court have their own misgivings about its legitimacy after this debacle.
The Roberts opinion does real harm to the broader credibility of our legal system. The individual mandate was called a “penalty” to get around a federal law (the Anti-Injunction Act) and then resurrected as a “tax” to make it constitutional. The joint dissent nailed this contorted legalese as “deep in the forbidden lands of the sophists.” To call Obamacare a penalty sometimes, a tax others, takes aim at the foundations of jurisprudence. If words have no meaning, law has no meaning.
Instead, Roberts reinterpreted the text by fiat and usurped the legislative power of the Congress. If the Congress was passing a tax, it was apparently news to them. This retroactive designation of a “penalty” as a “tax” displayed a breathtaking disregard for not just law—but our common understanding of language that creates it. It also opens the door wide to endless Congressional machinations to compel purchase of anything, for any reason, under the newly elastic “tax” definition.
As for the claims of a “silver lining” in the decision for conservatives, this is absurd. Freedom in America didn’t win any battle against federal power in the Obamacare decision-- it barely escaped complete annihilation. It tells us much about our own sad expectations of liberty that we are expected to celebrate that the Congress cannot compel us to do literally whatever it wants under the commerce clause.
Conservatives passively accept the tidal wave of federal overreach let loose by Wickard vs. Filburn. If the politics were reversed, Democrats would bring endless challenges to overturn commerce clause decisions. And US vs. Lopez, cited multiple times in the ACA opinion, has already established limits to regulating commerce. There was nothing worthwhile gained in the ACA decision for those who value freedom and limited government, and much was lost.
That this could force more honest discussions of future “regulation” as de facto taxes will prove irrelevant to the broader economic implications at work here. Unless Republicans win in November and repeal Obamacare, we will have added another massive entitlement onto the crushing welfare state, shoving us closer to national insolvency. The Democrat statists will get their ultimate wish of a European-style single-payer healthcare. And in the meantime, we will all get used to waiting months for healthcare or receiving outright denials from surly, unaccountable government bureaucrats.
Then one day, when the government has collapsed the healthcare system as we know it, that same government will swoop in to save us. At that point, socialism will have ceased to be a dirty word in America, because it will be our reality.
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