Sunday, July 1, 2012

Thinking About That Supreme Court ObamaCare Decision Sure is Taxing

It was bad enough that the Miami Heat won the NBA championship, and now the bureaucratic monstrosity known as ObamaCare is the law of the land. Could anything be more depressing or disillusioning or disheartening?

We haven't blogged about it up until know because we kept hoping that there would be a follow-up announcement from the Supreme Court to the effect that "hey, we were just messing with you, America...of course ObamaCare is unconstitutional and null and void." But it is not to be.

Although ruling that the law imposing socialized medicine on the U.S.was unconstitutional under the Commerce Clause, Chief Justice Roberts inexplicably upheld the law by a 5-4 vote based on Congress' taxing powers in the decision released on Thursday morning.

Up until the Arizona immigration law decision, Roberts was in general doing a fine job on the court, but here he let American down in a massive way.

Regardless of all the hype, despite the Obama administration's empty promises, virtually everyone's insurance premiums will go up along with their taxes. And, government-run healthcare means government-rationed healthcare, which leads to, yes, death panels.

We've learned that the various predictions by expert Supreme Court watchers were wrong. For example, the individual mandate was not tossed out. Nor did Justice Kennedy go wobbly. Nor does a bad oral argument on the part of one side serve as a precursor to the final decision. In fact, Justice Kennedy, along with Justices Scalia, Thomas, and Alito wanted to throw out the entire law, not just the mandate. These four gentlemen held firm on constitutional principles and for that they should receive America's thanks.

So, Roberts had four votes in his pocket to either disallow the entire law which would have given him the latitude based on "judicial restraint" to block the mandate with his fifth vote but leave other aspects of the law in place (leaving aside the severability issue), but yet he decided to go with the Court's left-wing block by upholding the law on the basis of the taxing power.

Legal scholars are continuing to pour over the decision, but as a practical matter why in the world would Roberts do that when the government grounded their entire case on the Commerce Clause and specifically rejected the tax argument? Why did he take it upon himself to new justification that the government never advanced? Is that even appropriate?

What's even more disappointing is that during the oral argument, Roberts was perceptive enough to specifically call attention to the fact that the one-size-fits-all ObamaCare mandate will force American citizens into coverage they don't need or want and that high-deductible plans will go by the wayside.
The latter is not a constitutional issue, but it is a practical dollars-and-sense issue that will hit middle-class consumers right in the wallet.

According to some analysts, Roberts may have changed his vote at a later stage, and that the dissenting opinion actually started off as the majority--even more of a pity. Did Roberts succumb to either public or private Chicago-style intimidation to change his vote? Let's hope not.

And as to the notion that the decision to is some Jedi mind trick or Trojan Horse by Roberts that will prevent the left from expanding its sweeping reach under the Commerce Clause, hogwash. This is the real world, not a law school class. Moreover, none of that verbiage would be binding on a future court if the ideological balance changes.

As Prof. William Jacobson wrote Friday at Legal Insurrection:
The self-delusion that yesterday’s affirmation of Obamacare’s mandate under the taxing power of Congress was a conservative victory continues in full force today.
Judicial restraint now means ignoring the will of Congress as to the purposes and structure of legislation in order to save the legislation from Congress.
That “restraint,” i.e., rewriting legislative history,terms and purposes in order to save it, was not used to salvage most of the Arizona immigration law.
Funny how that works.

Watch Sarah Palin discussing the decision on The Five, including calmly schooling the oafish Bob Beckel (who is still on the show perhaps because Juan Williams is even worse):


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