Bill Dunne:
One of the most overlooked aspects of the year just ended is the vindication of Chief Justice John Roberts — a vindication that showed up as the national catastrophe known as ObamaCare got rolling. Roberts may have also doomed Hillary Clinton’s chance to live in the White House again.
The chief justice, an appointee of President George W. Bush and reputedly a constitutionalist in his jurisprudence, set his diabolical trap (diabolical to Democrats) on June 28, 2012, when he joined with the four liberal justices on the Supreme Court to uphold the constitutionality of ObamaCare. Conservatives and Republicans across the land were apoplectic. But in hindsight, it appears that Roberts actually saved the Republican Party from going into a death spiral and imperiled the Democrats instead. This suggests amazing foresight, but it wouldn’t be the only instance.
For example, Tevi Troy, a scholar at the Hudson Institute, made a remarkable prophecy a year and a half before the Court’s decision. It was soon after the November 2010 midterm elections, in which Democrats in Congress and in state legislatures suffered huge losses. In an article in Commentary magazine, Troy wrote:
The Pyrrhic victory Democrats secured for themselves [when President Obama signed the Affordable Care Act into law] may prove not to have been a victory at all but rather an ever-roiling, ongoing, and recurring act of political and ideological self-destruction.
How’s that for prescience?
When the Supreme Court ruling came down, a shocked conservative historian, Paul Rahe, cited as a cause the PR pressure that President Barack Obama had been exerting on the Court in the fevered weeks leading up to the decision. It was “an act of judicial cowardice,” he fumed. But then he added, “There is, I am confident, more to it than this.”
What that “more” consists of has been growing more apparent by the day — with the ongoing and painfully obvious parade of disasters, and the accelerated emergence of government by decree.
And yet the Court’s ruling was not all bad news for conservatives. There were multiple settings to the Roberts trap. A majority that included Roberts rejected the government’s contention that Congress had authority under the Commerce Clause of the Constitution to force private individuals to buy health insurance. Justice Anthony Scalia nailed it, saying that to accept such a notion would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”
The Court also invalidated two key provisions that were held to violate state sovereignty and the foundational concept of federalism. Each state was thereby free, if it chose (as many have), to decline the federal invitation to expand its Medicaid program, and free to not set up a state exchange to sell ACA-compliant policies.
ObamaCare’s goose might have been cooked right there. But Roberts then turned to what seemed the most farfetched of the alternative arguments for upholding the law. And he embraced it.
That argument asserted that the law’s explicit “penalty” for an individual who failed to buy health insurance was not really a penalty. Lower courts had deemed a penalty to be of doubtful constitutionality. So Roberts agreed with the government’s lawyers that the “penalty” was actually a tax, and the levying of taxes is of course a legitimate power of Congress.
Law rewritten on the bench has seldom had such a glaring example. In effect, Roberts single-handedly forced all Americans to face — up front and personal — the epic political malpractice that is ObamaCare. “It is not our job,” he added, “to protect the people from the consequences of their political choices.” Wow. Tough love.
This is an interesting take on the court’s decision. Politics is so convoluted that I frequently can not understand all the moves– I sometimes feel like the Jimmy Stewart character in “Mr Smith Goes to Washington” whose world is shaken when he sees gets a front row seat view of how Byzantine the politics in Washington really are.
I read the article with interest and considered it closely but these post-instance analyses also conjure up the skeptic in me and bring to mind a minor part of the Rodney Dangerfield movie, Back to School. Dangerfield plays an earthy “free spirit”– a pragmatic, successful businessman who enrolls in college to help his son get through. He is no stranger to hard work but why do any that is not necessary! He hires Kurt Vonnegut to write a paper analyzing Kurt Vonnegut which is given a poor grade with the teacher commenting that Dangerfield (the purported author) does not know anything about Kurt Vonnegut.
I have this uneasiness about commentary (mine included) which tries to penetrate the underlying logic behind events. The sad fact remains that in the simplest cases, many decisions in the world are not based on logic at all and the most highly engineered cases are so complex that the creator of them might not himself fully understand the creative process leading to the decision.
I guess the bottom line is that attempting to reach understanding to justify any personal direction is not easy. Is it too late for me to apply for welfare?
@Dink Newcomb: While it all may work out well, just getting the ball rolling toward socialized medicine can not be a good thing. This hypothesis is that it is so BAD that it will be hung around the Dimocrats necks for a long while. I hope so.
@Redteam:
I agree! Trust me, I am a cranky grey-beard conservative who looks to individual initiative to solve my own problems and those of the country. I was just venting frustration with the insane juggling act of winnowing the metaphoric “wheat from the chaff”. I have become, in my life, much more suspect of things that I tend to accept without question– history is replete with the dire results of such unchallenged lassitude. It is a struggle forcing myself to apply my concentration to ideas that are initially abhorrent to me in an attempt to get a true perspective on those things and somehow avoid the synchrony of the “sides” most people want to belong to. Politics often seems uncomfortably similar to the catechism of the high church.
Since when? The SCOTUS performs exactly this every time it strikes down a law or action it considers “unconstitutional.” The SCOTUS for over 100 years has indicated that the premise of “Judicial Review” and “Substantive Due Process” was part of their reason for being. To save the people from unconstitutional and unjust legislation, and when the federal government oversteps it’s Constitutional powers. In such cases, isn’t the SCOTUS in effect protecting the people from the consequences of their political choices?
The above quoted statement of Roberts was a poorly worded one. What would have been more correct would have been if Roberts had said that under “Judicial Restraint”:
In addition, the Federal Courts system and SCOTUS is not obliged to help ither party frame it’s arguments in a manner that supports their case. If you fail to bring forth evidence or precedence that helps to prove that a law or action was unconstitutional, the residing Justices are not compelled to do it for you.
The ACA was not passed according to long established Congressional procedure, due to the dishonesty of it’s sponsors and the majority party (Democrats). They argued that the penalties were fees, not taxes in order to avoid the higher requirements for taxation law. Then when it was questioned in the courts, the defending side turned around and argued that the penalties were not fees, but taxes. Sadly the SCOTUS is not required to consider if a law was passed according to established Congressional rules when ruling on whether a law is constitutional. The opposition to the law should have brought up the sleazy hypo0critical misrepresentation, when the claim was made that the “fees” were admittedly really “taxes” and insisted that if the penalties were “fees” during passage, the Court should rightly treat them as “fees” after passage, otherwise the law was passed on false pretenses.
I certainly hope Justice Roberts was that prescient. What a painful, expensive lesson.