The Chief Justice's ObamaCare ruling is
far from the check on Congress of right-left myth.
Wall St Journal July 2,
2012
Consider reading this
article at the following web link: http://online.wsj.com/article/SB10001424052702303561504577496603068605864.html?mod=WSJ_hp_mostpop_read
The following are some EXCERPTS: But if not a direct tax, then what kind of
tax is it? It is not an indirect tax because it applies to a failure to
purchase something, what the Chief Justice calls "an omission," not
an optional transaction. It is not a tax on income because that merely hits
"accessions to wealth," not what people choose or choose not to do
with those accessions.
The result
is that Chief Justice Roberts has created the only tax in U.S. history that
exceeds its own constitutional limits and is meant to execute powers that the
Court otherwise ruled were invalid. His discovery erases the limiting
principle—apportionment—that constrains the taxing power for everything besides
income and excises.
In the process, Chief Justice Roberts has hollowed out dual
federal-state sovereignty and eviscerated the very limit on the Commerce Clause
that he posits elsewhere in his opinion and that has some conservatives singing
his praises. From now on, Congress can simply regulate interstate commerce by
imposing "taxes" whenever someone does or does not do something
contrary to its desires.
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Chief
Justice Roberts's ruling is careless about these bedrock tax questions, and
they are barely addressed by either the Court's liberal or conservative wings.
His ruling, with its multiple contradictions and inconsistencies, reads as if
it were written by someone affronted by the government's core constitutional
claims but who wanted to uphold the law anyway to avoid political blowback and
thus found a pretext for doing so in the taxing power.
If this understanding is correct, then Chief Justice Roberts
behaved like a politician, which is more corrosive to the rule of law and the
Court's legitimacy than any abuse it would have taken from a ruling that
President Obama disliked. The irony is that the Chief
Justice's cheering section is praising his political skills, not his reasoning.
Judges are not supposed to invent political compromises.
"It is
not our job," the Chief Justice writes, "to protect the people from
the consequences of their political choices." But the Court's most
important role is to protect liberty when the political branches exceed the
Constitution's bounds, not to bless their excesses in the interests of
political or personal expediency or both. On one of the most consequential
cases he will ever hear, Chief Justice Roberts failed this most basic
responsibility.