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Can't Get Fooled Again

 

In Earl Warren Rides Again, I wrote:

Roberts portrays his decision as a check on federal power—if the Court had upheld the individual mandate under the Commerce Clause, it "would open a new and potentially vast domain to congressional authority." But it's unclear whom he thinks he is fooling.

Silly me. I should have known the answer: He thought he'd fool the entire conservative movement. And it looks like he's right. Pretty much every mainstream conservative group or publication has offered a variation of this post at The Weekly Standard's website:

[T]he Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.

The author ignores the fact that "the Roberts Court" (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to "lay and collect Taxes" beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not,
he even tries to make lemonade out of Roberts' declaration that the penalty imposed by Congress for failure to purchase health insurance is "legally a tax":

Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.

Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!

Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to "nominate judges in the mold of Chief Justice Roberts" will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that's a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.

Scott P. Richert

Scott P. Richert

Scott P. Richert is editor at large for Chronicles: A Magazine of American Culture, and Publisher for Our Sunday Visitor.

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