Sometimes good people do bad things.
And sometimes good people do bad things for good reasons.
And that leaves us to decide whether the good reasons may
eventually make up for the bad thing.
Chief Justice John Roberts sided with the liberal wing of
the U.S. Supreme Court to save Obamacare from the ignominious death of
unconstitutionality that it so richly deserved. He did this, by getting a majority
of the court to pretend it’s a tax. Everyone (outside a few “compounds” in
Idaho, perhaps) agrees the federal government has the power to tax.
It was a decision that seemingly came out of nowhere. All
along, no one who supported Obamacare called it a tax—Obama himself vehemently insisted
it is NOT a tax. Of course that didn’t stop him from taking his typically
undeserved victory bow with comments that boiled down to: “Hey, it’s a tax! Who
knew? Anyway game’s over, I won and would someone please destroy the instant
replay tapes?”
Practically everybody thought that if Obamacare was going to
be found legal it would be under the U.S. Constitution’s Commerce Clause, which
gives Congress the power to regulate interstate commerce.
That poor old clause has already been horribly warped out
shape by the desire by some to expand the role of government way beyond
anything imagined by the Founding Fathers. But this would have been the first
time it was twisted to describe something a person DOESN’T DO (not buy health
insurance) as “interstate commerce.”
If the Federal Government could regulate inactivity, there
was nothing it could not compel people to do. Limited-government types were
justifiably terrified by the prospect. So in what could only be described as a “deal
with the Devil,” Roberts gave the Left their Obamacare. But he also did a Jean
Luc Picard impersonation with the Commerce Clause: “This far, but no farther!” (A
reference to the Borg invasion … you have to be a Trekker.)
Now some are saying, “Yeah, but now can’t Congress just call
anything a tax, and have government do anything it wants to us, anyway?”
Theoretically yes. But Congress doesn’t like calling something
a tax, even when it is. (“Let’s just call that a fee instead, uh, for
investment purposes.”) So that would leave it up to the courts to repeat the
Chief Justice’s imaginative wordplay in the future. Yes, it if it walks like a
duck, quacks like a duck and swims like a duck, the Supreme Court can always declare it’s a horse. But
that doesn’t mean every other duck that comes along has to also be called a horse.
I suspect Roberts was expecting (hoping) this would be one-time-only wackiness.
But why not just do the right thing and put Obamacare out of
our misery by joining the side of the court that has a little respect for the
U.S. Constitution? That’s what conservatives and libertarians wanted. “We had
this!” they cry. “Why John Robert, oh why did you betray us?”
I believe Roberts was worried that “sometimes when you win,
you lose.”
The noise-makers on the right side of the political spectrum
(led by Fox News and Talk Radio) can more than match up with the noise makers
on the left (the mainstream “news” media and Hollywood) when a debate is hot,
primarily because common sense and the facts almost always favor the Right. But
the Left is built to win in the long-term. A majority of the country may have
wanted the Supreme Court to strike down Obamacare, but that would have been today. Roberts was worried what the public
would think of his court a few years from now.
If Roberts had stayed in the real world with Justices Scalia,
Alito, Thomas and Kennedy, we would have heard incessant weeping and gnashing
of teeth from Obama and liberal Democrats that it was a purely partisan
decision. (Stuck-in-concrete left-wing Justices Kagan, Breyer, Sotomayor and
Ginsburg are never partisan, don’t
you know?) The hue and cry would also have been echoed by all the White House’s
propaganda organs like the New York
Times, ABC, CBS, NBC, MSNBC, CNN … etc. The Right would be enjoying a sigh
of relief that Obamacare was dead at the very moment the Left was launching a
full-scale attack on the good guys of the U.S. Supreme Court.
And the attacks wouldn’t have stopped … ever. Their
manufactured rage would have calmed down, true, but Phase Two of the assault
would have been carried on by overwhelmingly liberal academia and popular media
always repeating the lie that Obamacare died—not because it was
unconstitutional—but because five judges were “conservative.” And when a lie is
repeated often enough, and few know or care to remember what actually happened,
that lie becomes accepted as fact. (Case in point: The lie that the Supreme
Court “stole” the 2000 election for George Bush.)
I don’t think Roberts wanted that to happen to his court,
not over Obamacare, anyway. No one wants to see their life’s work falsely maligned
in history.
And I also want to believe that Roberts realized the rule of
law could only win—for a while anyway—if the next president who puts justices
on the courts is NOT Barack Obama. The nation couldn’t afford to have the Right
celebrating victory with the Left declaring all-out war.
I think Roberts made a calculation: For the price of one
idiotic court decision, he’d save his court from defamation, saddle Democrat politicians
(like Florida Sen. Bill Nelson) with their awful Obamacare and energize the
lovers of liberty to fix matters in November. Then with a few good court appointees for
President Romney, he’d never have to go through this foul business again.
A risky move. I hope it was worth it.
