Texas Insider Report: WASHINGTON D.C. One telling note is that the Supreme Courts minority dissent repeatedly refers to Justice Ginsburgs dissent and the dissent on the mandate. One may assume them to be referring to Ruth Bader Ginsburgs concurrence. This wording and other sources
suggest that there was originally a 5-4 majority striking down at least part of ObamaCare but that the Chief Justice later changed his mind.
The Justices may never confirm this informed speculation but if true this may prove far more damaging to the Courts institutional integrity (that the Chief Justice is known to revere) than any ruling against ObamaCare.
If this was a play to compete with John Marshalls legacy the result is closer to William Brennans.
According to Chief Justice Roberts the penalty is merely a tax on not owning health insurance no different from buying gasoline or earning income and it thus complies with the Constitution.
This a large loophole.
The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes or even if it calls them something else and judges call them taxes.
That was true with ObamaCare. The Pelosi Democrats explicitly structured the mandate as a regulatory penalty.
Congress voted down a direct tax in 2009. Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.
Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments.
The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.
The Chief Justice in effect revised the statute in order to find it constitutional.
The Court did rule 7-2 against ObamaCares expansion of Medicaid the supposedly voluntary federal-state program that once covered only the poor. The majority included liberal Justices Stephen Breyer and Elena Kagan who held this expansion to be unconstitutional because the feds commandeered state resources.
The problem is that this also involved rewriting the law.
The majority merely created an opt-out that Governors and states could elect to preserve some measure of independent control instead of telling Congress to start over. This is the first time the Court has found a law enacted under Congresss spending power to be unconstitutionally coercive.
Justice Kennedy dissented angrily from the bench and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court.
But this and even the five votes limiting Congress under the Commerce Clause pale against the Chief Justices infinitely elastic and dangerous interpretation of the taxing power.
In their brutal (and in a rarity jointly signed) dissent Justices Scalia Kennedy Thomas & Alito write that the Chief Justices logic is not to interpret the statute but to rewrite it ...
Nancy Pelosi famously said We need to pass the bill to find out whats in it. Now it appears we need Justice John Roberts to write an appendix on his decision as well.
Thursday was destined to be an historic day for American liberty and it was though the new precedent is grim. The remarkable decision upholding the Affordable Care Act is shot through with confusion ... i.e. the mandate is really a tax except when it isnt. And the governments
powers are limited or enumerated except when they arent.
As the Wall Street Journal writes today One thing is clear: This was a one-man show and that man is John Roberts.
The Chief Justice ruled that ObamaCares mandate violated the Commerce Clause joined by the Courts conservative bloc but he also said that the mandate fell within Congresss power to tax joined by the Courts liberal bloc.
In practice this is a restraint on federal power without real restraint and worse the Chief Justice had to rewrite the statute Congress passed in order to salvage it.
The ruling will stand as one of the great what-might-have-beens of American constitutional law.
