Maybe a Battle Lost and a War Won

This morning the Supreme Court announced that Obamacare  is found to be constitutional.  Most observers were surprised to find that it was not Kennedy but Roberts that was the swing vote.  Libertarian and right thinking folks are outraged.

What happened? Is Roberts a traitor to the constitution and  its intention?

Conservatives gathering now for a low-tech lynching of Chief Justice John G. Roberts Jr. need to take a quick breath of air and think about what he managed to accomplish by upholding President Obama’s highly unpopular, signature piece of legislation.

Though he shocked many by joining the left plank on the high court,Justice Roberts. pretty much did what he was supposed to do. He finally put a boundary on how much freedom the federal government can gobble up from states and individuals under the “commerce clause” — that most specious scheme for so much federal thievery.

Charles Hurt suggests that there are bigger more important issues at stake. While it seems as though Government takeover of the nations healthcare system is a pretty major issue. Some have claimed that there Roberts was handing over the battle to win the war.

 Here’s the Chief Justice’s opinion (italics in original):

Construing the Commerce Clause to permit Congress to regulate individuals preciselybecause they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

I don’t  claim to understand all of this, I am not a lawyer, I work for a living. Time will be the ultimate judge, Perhaps Obamacare will be tossed by Congress and the Commerce clause will be take on limited application.  Time will tell.

One thought on “Maybe a Battle Lost and a War Won”

  1. I’m not a lawyer either. I work for a living also. However, there is one thing that I do know. This new law is going to be funded through a tax. In the beginning, Obama and his party were arguing that it wasn’t a tax, rather a penalty or an individual mandate for those without insurance who chose not to have insurance. Well, now that it is going to be a tax, this tax will be applied to those without insurance and that meet the qualifications set forth. This tax is not only a tax but, in effect, a penalty or mandate and punishes those who don’t have healthcare. This new tax will compel the non-insured to participate in the system.

    Roberts actually changed the language of the Bill. This isn’t healthcare reform . Its healthcare sabotage.

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