WASHINGTON — I have a headache. I imagine you do too, if you
have been trying to interpret the legalese employed by those legal
sages who have pronounced on Thursday’s Supreme Court decision on
Obamacare. I would rather read the lyrics of a thousand rap
composers than the anfractuous language of one legal sage.
Thanks, however, to Professor E. Donald Elliott of the Yale Law
School I had a translator at my side, and I shall now hand down my
judgment of the Court’s decision on Obamacare, which all sensible
Americans have abstained from reading in its entirety including B.
H. Obama and the vast majority of denizens of Capitol Hill,
including N. Pelosi. Some of these worthies even admitted as much.
It fell to nine heroic souls garbed in black actually to read the
law and to Chief Justice Roberts to write the decision for the
exhausted majority.
As a result of his prestidigitation with prior precedents and
with the famously vague English language, critics
cannot dismiss Chief Justice Roberts as hyper-partisan. His fellow
conservatives are highly agitated by his decision. His usual
opponents, the Liberals, celebrate him. The Chief Justice dodged
the bullet. I think you can call him crafty, as Chief Justice John
Marshall was crafty all those years ago when he wrote the decision
for Marbury v. Madison. Roberts’ decision, the decision of
the majority of the court, accomplished three things.
Firstly, it reiterated two earlier holdings of the Court that
ended the expansion of the commerce clause. The expansion of the
federal government’s reach under the commerce clause is no longer a
grave threat to limited government. This offends certain Liberals
such as our friends at the New York
Times. Well, you win some and lose
some, indignados.
Secondly, for the first time since the New Deal the Court
rejected a law for exceeding the spending power of Congress. The
Court invalidated the part of Obamacare that gave the federal
government the power to coerce state governments to spend money on
Medicaid.
Thirdly, the Congress can now tax us for not doing something,
but this power is not nearly so dangerous as the power that the
Court limited, namely, the commerce power. Laws passed under
Congress’s power to tax and spend may only take our money. Our
recourse against this tax is the same recourse we have been
employing since 2009, to wit, mobilizing and going to the polls. In
2010 it led to a historic sweep at the state and federal level. In
2012 the sweep will continue, landing Mitt Romney in
the White House where he says he will make repealing and replacing
Obamacare his preeminent priority. He can also refuse to enforce
the tax by executive order. The next Congress can repeal it, using
reconciliation to avoid a Senate filibuster if necessary.
All things considered we conservatives did not come out so
badly, which should demonstrate once again how dangerous Obamacare
is. Prior to Chief Justice Roberts’ juggling act
Thursday, the conservative majority on the Court was
going to bounce Obamacare and the Liberals could continue their
noble work of deauthorizing an entire branch of the federal
government, the courts. They could smear the Supreme Court as but
another locale where crass conservatives play politics. You know
how the otherworldly Liberals disdain mere politics! Now Chief
Justice Roberts has responded to the better angels of his nature,
and the Liberals are applauding. As I have said, Liberalism is
dead.
Roberts may be another conservative figure of historic
dimensions, as was Marshall. In 1803 Marshall was
confronted by the outgoing Federalists’ appointment of the
“Midnight Judges,” last minute appointees to the
federal bench. When one of those appointees, William Marbury, did
not get his commission he took it to the Supreme Court under the
Judiciary Act of 1789. There sat Chief Justice Marshall, a
Federalist and a believer in a strong federal government. He took
the long view. He too, like Chief Justice Roberts, was crafty. He
ruled that Marbury was entitled to his judgeship, but the
Constitution did not give him the authority to raise Marbury to the
court. The provision of the Judiciary Act, by which Marbury claimed
his commission, was unconstitutional.
Chief Justice Marshall thereby established the principle of
judicial review. This time around might Chief Justice Roberts have
curtailed the pernicious commerce clause and pared back the federal
government’s ability to coerce the states? Might he have returned
Obamacare to another round of democratic process? History continues
to be filled with surprises. We shall await its judgment.
