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Earl Warren Rides Again

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By:Scott P. Richert | June 28, 2012

 

Chief Justice John Roberts was initially nominated by President George W. Bush to replace Sandra Day O'Connor on the country's high court. So, in the wake of today's ObamaCare decision, authored by Roberts, it's no surprise that many who wanted to see the Court drive a stake through the heart of the most overreaching piece of federal legislation in American history are comparing Roberts to O'Connor. Joined by liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan, Roberts can fairly be said to be the Court's new swing vote.

In the far-reaching implications of the ObamaCare ruling, however, John Roberts has revealed that he is no Sandra Day O'Connor but a latter-day Earl Warren. Today's decision not only upheld ObamaCare but provided the framework for an unprecedented expansion of federal power. If you've liked the Court's Commerce Clause decisions over the decades, you're going to love what the Court can do with Congress's power "to lay and collect Taxes."

The Syllabus of the decision provided by the Court cuts through the turgid text of Roberts' 59-page decision and tells us all we need to know: The individual mandate of ObamaCare could not be justified under the Commerce Clause, because the Commerce Clause can only regulate existing commercial activity, not compel individuals "to become active in commerce." But Congress and the President want to do precisely that, by forcing individuals without health insurance to purchase it, and so Justice Roberts (with a little help from the Obama administration's lawyers) found the justification elsewhere: Congress can levy a tax on those who refuse to purchase health insurance.

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. The administration's lawyers and Roberts turned to the power "to lay and collect Taxes" precisely because the Commerce Clause had already been stretched to the limit. With today's ruling, Congress has been given the green light to do something that even the most imaginative interpretation of the Commerce Clause would not allow: to compel the supposedly free citizens of the United States to purchase anything that Congress deems in those citizens' best interest—or to compel them to purchase one thing rather than another. All Congress has to do is to pass legislation levying a tax on those who, say, fail to purchase smoke detectors for their homes, or who insist on purchasing a car that runs on gasoline over one that runs on electricity.

On second thought, comparing Roberts to Earl Warren may be unfair—to Earl Warren, that is. Warren could only dream of writing decisions that would give the federal government this kind of power over the everyday lives of American citizens. Roberts has turned that dream into a reality—and into a nightmare for anyone outside of the ruling elite in Washington, D.C.

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