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April 28, 2015 / 9 Iyar, 5775
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Not The Supreme Court’s Finest Hour

The traditional view of the United States Supreme Court as the ultimate, objective, arbiter of our system of government and thereby protector of our liberties took an enormous hit last week when the court upheld the constitutionality of Obamacare.

In an almost universally panned opinion, Chief Justice John Roberts effectively gutted the notion of constitutionally limited government. Incredibly, the chief justice said that while Congress had no power under the Constitution – i.e. its Commerce Clause – to pass the personal mandate provision of Obamacare requiring individuals to purchase health insurance, it could nevertheless penalize Americans through the imposition of a tax for non-compliance with it. That is, the lack of constitutional authority to pass particular legislation no longer prevents Congress from getting its way by exercising its virtually unlimited general power under the Constitution to write tax laws.

Many of those concerned about the Obama health plan were, to be sure, concerned about its financial and social implications. But others were troubled by the reliance of the president and Congress for legislative authority on the Commerce Clause, which empowers Congress to pass laws regulating activity that affects interstate commerce. The fear was that if Congress could rely on the clause to force individual Americans to buy health insurance, there is little that could not be the subject of legislation under that provision of the Constitution.

So, initially at least, there was widespread approval for Justice Roberts’s ruling that reliance on the Commerce Clause was misplaced. Indeed, as Mr. Roberts wrote, reliance on the Commerce Clause “would open a new and potentially vast domain to congressional authority…. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.

But soon reality set in. For one thing, the Roberts pronouncement on the inapplicability of the Commerce Clause played no part in the ultimate ruling of the case, which was decided on the basis of the congressional power to tax. And no other justice joined his opinion – not the four on the conservative side who issued their own dissents while voting to strike down Obamacare – and not the four liberal justices who wrote opinions that agued the Commerce Clause would also work.

So, technically, Justice Roberts’s reasoning is not necessarily precedential and merely what lawyers call dicta, or opinions of a judge that do not embody the resolution or determination of the court. The dangers in a Congress and a president invoking the Commerce Clause in justification of Obamacare and four justices on the Supreme Court acquiescing in that are clear. But even this is overtaken by the vast expansion, thanks to Justice Roberts’s ruling, of the power to enforce compliance with laws Congress is not empowered to enact.

There is much disturbing speculation that Justice Roberts stretched to find a way to uphold Obamacare and avoid the appearance that he was presiding over a “conservative” court bent on striking down the signature legislation of a liberal president. Yet he in effect rewrote the law in that Congress – and the president – had specifically relied on the Commerce Clause and eschewed reliance on the taxing power. He also conflated the notion of penalty provisions for violating laws or regulations with a tax when judicial precedent has invariably treated penalties and taxes as being fundamentally different.

One plain result is that the Supreme Court now appears a politically driven plaything of a chief justice whose machinations have created the potential for the exercise of unlimited federal control over the American people. It also seems unlikely that Chief Justice Roberts can continue as an effective leader of the court, a role that involves promoting collegiality and cooperation, as he failed to get the support of even one other justice. And the sort of vituperative language with which his conservative colleagues rebuked him in dissent has rarely been seen on the court.

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