I’ve been studying the majority opinion on Obamacare and there are no two ways around it – supporters of limited government and the Constitution lost a battle to turn back the tide of “progressivism” in a big way. What is so stunning is not that we lost – because populist “progressive” programs have become de rigueur in our age of legislating from the bench – no, the stunning part is how close we came to a repeal of not only a program (Obamacare) but a repudiation of a political philosophy (“progressivism”).
The unity of the dissenting opinions is cogent and clear, including that of Anthony Kennedy, who normally is the wishy-washy “moderate swing vote” on the court.
Throw the damn thing out – all of it- as it is a massive violation of individual rights and therefore unconstitutional.
There a those who are now either taking up apologist roles for John Roberts or are trying to see the sunny side of the ruling as a victory for constitutionalists due to the inclusion of the comments about limits on the Commerce Clause. Some are even scheduling coronation ceremonies to crown Roberts the King of the Foxes for his guile and slyness in handing the “progressives” a defeat wrapped as a victory. I wanted to be one of these people because I wanted to believe that Roberts is a man who can be counted on to protect the rights of the individual, as the Constitution is written, and not bend it to fit the will of the collective – we don’t need the Supreme Court to do that – for that we have 435 members of the “People’s House”, the House of Representatives in the legislative branch.
I have read and re-read Roberts’ Commerce Clause comments and in my opinion, these should not be construed as an opinion but as “in dicta” comments, that is to say that they are authoritative and yet not binding. His comments on the mandate are helpful only in the sense that if we ever have another massive socialist health care program, the tax can’t be called a “mandate”. Other than having a “feel good” effect, they are basically worthless in a legal and Constitutional sense.
Conservatives are rightly up in arms about Roberts’ willingness to allow the Court to rewrite legislation by deciding that the mandate was not a penalty rather than just give it a thumbs up or down. In all due fairness, the Obama Administration did advance the theory that it was a tax, but only after the previous two lines of argument were clear failures. To me, that this process of multiple theories was allowed to progress (just pick the one you like the best) is more maddening than the decision itself. Scalia, Thomas, Alito and even Kennedy saw through all of this rhetorical fog.
Of course, Obama now has to try to “resell” the program to the American people with a tag around his neck stating “It is a tax!”…that’s going to get some traction with anti-tax independents but for the most part, those who cheered O-Care in the first place already had no problem with an unconstitutional mandate anyway. It is clear that the Democrats lied to pass this thing, passing the tax increases off as “penalties” – that much is clear today as they are using this very term even though the Supreme Court said it was a tax. They couldn’t call it a tax during the run up to passage via a reconciliation bill because a country in the throes of a depression would not have supported it in the first place…but the people who bought into it at the start won’t care about the dishonesty, they see lies as necessary tools to accomplish things for the “greater good” because they know we will “like it once we see what is in it.”
We did lose an important battle. The “progressives” won a victory, one that if it is not repealed under a newly elected Romney presidency and a Republican Congress in January of 2013, will change this country even more than the “progressive” movement changed America in the 1920’s and 30’s.
We are facing now, and actually have been for some time, a patient and determined Marxist movement wearing a populist mask. This isn’t a Bolshevik Revolution where our country is changed by war and public pronouncement of the intent of the revolutionaries, this is a dishonest stealth campaign bent on achieving domination and control through slow and deliberate seduction of indecisive people of few principles, weak convictions and malleable character…in short, products of decades of indoctrination in post modernist thought in government controlled schools.
I find nothing to cheer about anything that Roberts did. The thing that hurts the most is seeing in the dissenting opinions how close we were to putting liberty ahead of tyranny and missing that seminal opportunity to turn the tide.
Professor Jacobson at Legal Insurrection has a roundup of similar, yet far more esteemed opinions than mine here.