Time has passed since the SCOTUS ruling this morning and I have had a chance to review the opinion of the Court. I still contend that John Roberts participated in judicial activism by calling the penalty a tax when the law, Congress and Barack Obama himself said it was not a tax. It is not up to members of any court to rewrite what a legislative body has written. I am not so sure my earlier claim that Roberts betrayed America is accurate. It feels like a betrayal because he is supposed to uphold the Constitution, not write law but how it feels and what it is are two different things.
But, and this is a big but, he did rule that the Commerce Clause could NOT be used to enact Obamacare (now Obamatax). This is an important thing because it is now settled law that the government cannot compel people to buy things with a Commerce Clause argument.
All along the penalty was seen as a tax by Republicans. Democrats knew it was a tax but could not call it a tax because that would have spelled doom. Obama promised not to tax the middle class and he is on record as saying that people should not get health care by taxing the middle class. So, they had to call it a penalty.
John Roberts, as Chief Justice, was in a precarious position. Liberals were bemoaning the defeat of Obamacare and were all ready with their attacks on the conservative part of the Court. You will notice they never call the four solidly Democrat votes activist, only the conservative votes. in any event, he needed to do something that would uphold conservative principles, reign in government but also give the appearance that the Court is not activist.
Roberts achieved this by declaring that the mandate could not be enacted under the Commerce Clause. That was simple enough and it is sufficient to take the teeth out of future attempts to use Commerce for government expansion.
Roberts, once he asserted that Commerce could not be used to force the mandate acknowledged that Congress had the authority to tax people. He therefore called the penalty a tax which is what it was all along and is what Republicans said from the start.
While I think this amounts to judicial activism I think it was activism that appeared to give the left what it wanted and at the same time smacked them in the head.
Roberts declared that the penalty is a tax. This ruling now means that Obama has enacted the largest tax increase in the history of the world and he did so primarily on the middle class. Roberts gave Obama the outcome he wanted and at the same time demonstrated that Obama is a liar because making this a tax negates the vehement protest Obama made that it was NOT a tax. It also negates his statements that he did not believe everyone should get health care by levying a tax on the middle class.
The ruling also takes away the perception that the Court is political. If Roberts accomplished this while putting the screws to Obama then he is smarter than I originally believed.
He also energized the majority of people in this nation who do not want Obamacare and he gave Mitt Romney a huge gift at the same time. Obama cannot campaign on an activist Court striking down Obamacare but Romney can campaign on Obama being a tax and spend liberal who has given us the biggest tax increase in history. It would appear as if the ruling had a good effect on Romney as his campaign claims to have received about a million dollars in donations just three or four hours post ruling.
I still believe Roberts engaged in judicial activism but I am not as convinced he betrayed the Country. My initial reaction was based on the reports that the mandate was upheld. My belief was that the Commerce Clause argument was allowed to stand and that we could all be forced to buy things under this scheme.
Since this is not how it played out my assessment was hasty and incorrect. I offer an apology to Roberts for my assertion that he betrayed the country.
Like I said, he engaged in judicial activism (which the left is fine with because it went their way) and I am never in favor of that. I believe all branches of government should stay in their own lanes and things will work better.
Time will tell how this plays out and I am interested in seeing how the polls taken after the ruling trend. I think that while liberals celebrate the “victory” they achieved today they are worried because they are aware of what the ruling means for November.
To be sure, Obama (an alleged Constitutional Law Professor) had his mandate ruled unconstitutional. The law was only upheld when the Court changed his penalty to a tax and removed Commerce from the equation. So Obama, in winning, got it wrong. This is not something one would expect from someone who claims to know the Constitution.
I think this ruling might end up being a genius move and might end up costing Democrats. Many lost their seats in 2010 because of Obamacare. That was the only issue on the table and they lost.
Now, millions of seniors and many others who regularly vote as well as those who are opposed to the law and will certainly vote, are energized and will get out to defeat Obama.
The SCOTUS issued its ruling today.
We issue ours in November.
I am praying that we take a lot of seats in the Senate, gain more seats in the House and send Obama back to the street corner where he belongs.
UPDATE: One last note. I read something that is intriguing. Since the Court has ruled this is a tax the Senate only needs 51 votes to overturn it. If Romney wins the presidency and we maintain the House we would only need 51 Senate seats to overturn Obamacare. It could not be blocked by needing 60 votes because it is a tax. I think Roberts might have done us a favor but the rest is up to us. We need to win big.
Never surrender, never submit.