Thursday, June 28, 2012

King Robert's Court

Instead of issuing a ruling on Obamacare, the Robert's Supreme Court has rewritten the law. The Supreme Court, which is often referred by the name of the main justice, struck down the invocation of the Commerce Clause to justify Obamacare. During the oral arguments the five conservative justice correctly pointed out that such a broad interpretation of the Commerce Clause, intended to regulate interstate and foreign commerce only, would allow the government to mandate anything. It could promote healthy living by requiring people to buy broccoli, as Justice Scalia pointed out repeatedly.

The four dissenting justices: Scalia, Alito, Kennedy and Thomas were ready to strike down the entire law. The four liberal justices were willing to use the Commerce Clause, but settled for a radical re-interpretation of the law with justice Roberts in order to salvage Obamacare. There should be little doubt that these ideologues would have used any excuse to justify this expansion of government into private decisions, such as those involving healthcare choices.

The great irony is that in striking down the expansion of the Commerce Clause the court has itself greatly over-reached its authority. Roberts claimed he was showing deference to Congress. Congress, Obama, and all cases prior to this decision by the Supreme Court have been explicit that this law, as written, is not based on Congresses taxing power. For one justice, John Roberts, to "interpret" the law as based on tax, in contradiction to the intent of Congress is a travesty. It is stark judicial activism. It also begs the question whether there are any limits on the limits to judicial "interpretation".

So, while the Court has struck down government over-reach, it has legislated from the bench. Furthermore, the issue of taxes is strongly restricted by the Constitution -- any tax law is supposed to originate in the House of Representatives, and to be approved in exact form by the Senate. Democrats couldn't manage the votes, so they settle for the illegal application of "reconciliation" to average two different bills passed by the House and Senate. What Roberts has done is a kind of "reconciliation" by the Supreme Court to "fix" Obamacare.

This ruling is not a politically nuanced move by Justice Roberts as some would like to see it. It is mere replacement of Obama's hubris with Roberts' own. This shameful decision by Supreme justices is the kind of lawless action of a Kingly Court, which does as it pleases, not a branch of government with a narrow prerogative of interpreting the constitutionality of laws passed by Congress.

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