By now, you know that on Thursday, it was announced that President Obama's health care law withstood its constitutional challenges, with Chief Justice John G. Roberts siding with the four "liberals" on the bench in upholding the law.
I was disappointed to see/hear some establishment conservatives "spin" the Chief Justice's decision as something of a big victory for the conservative cause, citing Roberts' stern definition of the limitations of the Commerce Clause on potentially related legislation to come out of Congress in the future. In my opinion, such suggestions amount to getting mugged on the streets of New York City and then saying "at least I got to keep my dignity, since they let me keep my underwear on."
While it is admirable that the Chief Justice ruled that it would be now and forever unconstitutional for Congress to regulate in-activity, we're all still left with this monstrous, unfunded government liability that does nothing to address the biggest problem plaguing the health care industry, which is our sky-rocketing costs.
I'll discuss why this decision is so horrific for the country in a bit, but for now I want to address some other notions I find a bit far-fetched coming from prominent conservatives in Washington about what Roberts' intentions might have been. In this vein is Charles Krauthammer, one of my go-to voices on just about everything politics and policy coming out of DC.
The Special Report panel-regular claims that Roberts' decisions seems like cool political calculus, suggesting that by limiting the Congress' power, while being able to uphold such an expansive and historic law while leaving the Constitution intact, allowed him to keep 'his' Court away from vast liberal rhetorical annihilation, while preserving the ever-important conservative niche in Constitutional Law, limiting the breadth of the Commerce Clause.
Make no mistake, NFIB v. Sebelius is no Marbury v. Madison, when then-Chief Justice John Marshall in allowing President Jefferson a few political wins actually secured the biggest when in Supreme Court history, the precedent to review the constitutionality of laws passed by Congress. The problem with this comparison, which Krauthammer and other establishment conservatives is that Marshall never was thinking about the perception about his court. Chief Justice Hughes was.
Without going into great historical detail (you have Google...) Hughes is one of my least favorite historical "conservatives." Long story-short, Hughes was blocking many aspects of FDR's New Deal on Commerce Clause which prompted FDR's infamous "Court Packing" scheme of adding six justices to the bench. Not wanting the FDR-friendly press corps and American public as a whole to turn on the Court, Hughes started ruling many New Deal programs constitutional.
I have many problems with the Chief Justice's decision to uphold 'Obamacare' and chief among them is the fact that John G. Roberts actually expanded the power of the federal government to tax inactivity. This has never been done before and it could (and likely will sometime in our lifetime) lead to Congress taxing a number of areas of what they perceive as inactivity where they would like to see Commerce. I must also mention that such a notion was created by the Chief Justice.
For months during the legislative process, both the President and the Democratic Congress sold the "individual mandate" as "not a tax" and while the Solicitor General, arguing in front of the Supreme Court for the individual mandate did mention that it could fall within Congress' power to tax, his argument for the constitutionality of the mandate was unequivocally on Commerce Clause grounds.
It is not good for the country when Justices who possess years of jurisprudence of reading the Constitution for the words on its pages, start fashioning constitutional caveats to approve laws so to "preserve" "their" Court. It's dangerous for the country anytime any Justice starts creating laws instead of reviewing them, especially those laws that will have such a terrible impact on the country as a whole.
By allowing himself to be pursuaded by a culture that has been (successfully) defining conservatives and their like-minded "Originalist" counter parts sitting on the Court as dangerous to their narrative of the Country, John Roberts did himself his Court, and most importantly the country a great disservice.
If Barack Obama is re-elected there is a chance that he will have the ability to change the Court from its current make up to something like FDR was envisioning when he came up with the idea to add six more Justices. Prior to Thursday, Mitt Romney's website claimed he'd appoint Justices to the Supreme Court in the mold of Chief Justice Roberts, but if the country is face with the healthy prospect of a Romney Presidency, he should be thinking about appointing Justices that read the Constitution as if it were written to mean something.
I'm of the opinion that the choice Chief Justice Roberts made in upholding the legislative monstrosity that is Obamacare by creating an expansive Congressional authority over how taxation can be implemented will be terrible for the country, but not on current or future policy grounds. It will be terrible for what it will do to future Court proceedings, Supreme Court Justice appointments, and thus the Constitution as a whole. When the Constitution is in turmoil, it's the American people that must suffer from the transgressions against it.