Violence to the Constitution
Granted, it could have been far worse: the Court could have expanded the Commerce Clause beyond all limitations, but still the Roberts decision ranks high on the scale of judicial awfulness. Three links here. First, the editors of National Review:
What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. . . The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.
Thursday was destined to be an historic day for American liberty, and it was, though the new precedent is grim. The remarkable decision upholding the Affordable Care Act is shot through with confusion—the mandate that's really a tax, except when it isn't, and the government whose powers are limited and enumerated, except when they aren't. One thing is clear: This was a one-man show, and that man is John Roberts.
By persuading the Court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”