Charles Krauthammer • letters@charleskrauthammer.com | Posted: Sunday, July 1, 2012 12:00 am | (Loading…) comments.
It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.
Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.
As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.
That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?
“The Framers … gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”
That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.
Copyright The Washington Post
Copyright 2012 stltoday.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Posted in Charles-krauthammer on Sunday, July 1, 2012 12:00 am Updated: 6:10 pm. | Tags:
Print Email
More From STLToday.com
St. Louis area communities canceling fireworks shows (STLtoday.com)
St. Peters man accused of raping 16-year-old girl (STLtoday.com)
Man on tracks struck and killed by freight train in Wentzville (STLtoday.com)
Leonard Pitts: Romney’s NAACP speech (STLtoday.com)
Editorial: A ‘mandate’ becomes a tax, and the better angels triumph (STLtoday.com)
From Around the Web
“I Told You, I Don’t Know How Fast I Was Going, Officer” (nickmom)
Maintain Your Fridge With These 5 Dos & Don’ts (SheKnows.com)
Casey Anthony’s Lawyer Finally Reveals What We’ve Known All Along (VIDEO) (CafeMom)
8 Causes of Arthritis You Might Not Know About (HealthCentral.com)
Billionaire Has Choice Words for Obama (And Tells Americans to Prepare) (Moneynews)
[?]
Sponsored Links
most popular
Facebook
Most Read
St. Louis Coupons: Get fantastic deals — up to 80% off — sent to your e-mail. Sign up today!
St. Louis Sports Center – Only $70 for 1-week of day camp for kids including sports activities and lunch at St. Louis Sports Center! (A $145 value!)
MEDICAL ASSISTANT LPN
Saint Louis, MO
Company Confidential
OUTSIDE SALES
Fenton, MO
Company Confidential
PART TIME TELLER
Wright City, MO
First State Community Bank
SALES
Saint Louis, MO
American Building Contractors
GRAPHIC PRODUCTION
Fenton, MO
Optima Graphics
PARALEGAL SUPPORT-AUDIT POSITION
Saint Louis, MO
KRAMER & FRANK, P.C.
REGISTERED NURSE RN
Chesterfield, MO
Delmar Gardens
MANAGER
East Saint Louis, IL
IEC
CNC MACHINISTS – GRINDERS
Saint Louis, MO
Company Confidential
DRIVERS CDL A&B
Saint Louis, MO
Nu-Way Transportation
news ads
Sections
Home Page
News
Obituaries
Business
Sports
Entertainment
Health
Life & Style
Photos
Jobs
Autos
Homes
Directory
Classifieds
Services
Subscriber Services
Advertise on Our Site
Email Newsletters
RSS
E-Edition
Mobile Site
Events Calendar
Newspapers in Education
Archives
Contact Us
Terms of Service
Privacy / About Our Ads
Copyright
Corrections
Marketplace
Local Directory
The List Classifieds
Jobs
Rides
STL Homes
ShopSTL Newspaper Ads
STL Coupons
DineSTL
Post-Dispatch Store
STLshopper
St. Louis’ Best Bridal
STLtoday Network
St. Louis Post-Dispatch
Suburban Journals
Ladue News
St. Louis’ Best Bridal
Feast
Go!
STL Health and Fitness
STL Moms and Dads
STL High School Sports
MySTLtoday.com
© Copyright 2012, stltoday.com, 900 N. Tucker Blvd. St. Louis, MO | Terms of Service and Privacy Policy
Cary Powell Moseley - Attorney at Law 