This is the second in a series of articles relating to the recent Supreme Court decision on the Affordable Care Act. You can read Part I here.
There is widespread speculation that Roberts reversed his initial position shortly before the SCOTUS decision on the
Affordable Care Act ObamaTAX. Remarks in the dissenting opinion authored by Justice Kennedy, and the twisted, manipulated words in support of the Individual Mandate as a tax authored by Chief Justice Roberts himself, lend credence to this theory. Kennedy repeatedly refers to the opposing position as ‘the dissent’, a term always applied to the minority opinion of the Court. He repeatedly uses ‘we’ as is most often the case in a majority opinion. Roberts’ opinion for the majority is rambling and at times incoherent, bordering on ludicrous, in support of the tax option. His citing of precedent to uphold appears contrived.
Contrast his "it’s a tax" stance with the portion of his opinion that deals with the Commerce Clause and the Necessary and Proper Clause. Roberts eviscerates the Congressional (and presidential) overreach of legislative power. He deftly and defiantly lays the foundation for future boundaries of what the legislative and executive branches can attempt to accomplish through application of the Commerce Clause and destroys any tie to the Necessary and Proper Clause that might exceed those boundaries. In these regards, he is in complete agreement with the Justices whose viewpoint he is most often aligned with. Precedent has been established by his words in this regard and future cases will be weighed against these opinions.
Unfortunately, future cases will now, also be weighed against the unbridled and constitutionally authorized power of Congress to levy taxes as upheld with no defined limits in the Roberts text. The single litmus test appears to be whether or not the Chief Justice thinks any increase in taxes will constitute an unbearable burden on the tax payers—a standard so murky, so fungible as to be no standard at all, and according to Roberts’ own words, "not necessary to be defined at this time." Because Congress owns "first share" of all personal income in the country (see U.S. Constitution, Amendment XVI), any legislation that can be framed as a tax can withstand Supreme Court review, even if that tax is nothing more than a penalty for opting not to participate in congressionally mandated activity. (See the text of the Patient Protection and Affordable Care Act.)
Don’t want to buy health insurance? That’s fine. And this is a fine. That’ll be $700. Don’t want to buy an electric car? That’s fine. And this is a fine. That will be what? A thousand dollars? Two? Don’t want to give up your coffee, or cigarettes, or wine with dinner? That’s fine. And this is another fine. There is no conceivable limit to where the fines for not doing as Congress dictates will end, short of a revolt en masse of the American people. The fallout from this for American citizens will be worse than the, up until now, loose reins on the Commerce Clause.
Many pundits, from both sides of the political spectrum are saying that Roberts’ decision was a brilliant piece of jurisprudence. By upholding the law as constitutional, and concurrently formulating it as the most massive tax increase in history, this may be a case of a battle win, but a loss of the war for the Democratic Party. The Republican base will be fired up to go to the polls in November and sweep not only both houses of the legislative branch, but the executive branch as well. Or so they say.
If Chief Justice Roberts is blessed with such future site that he can not only decipher the fog of things yet to come, but also know the mind of the electorate and read the hearts, intent, and unfailing stalwartness of those yet to be elected in November, then maybe he should change his name to Nostradamus. This, to me, smacks of the same type of proof most conspiracy theories rely on. Or maybe, lacking that future site, Roberts may be nothing more than a big-time gambler, gambling the future of the Republic on a hoped for outcome.
After perusing my thoughts above, I am not yet convinced of Chief Roberts’ brilliance, but leaning that way. The gambler aspect strikes me as a foolish game to play and I am not convinced the Chief is a fool. Another thought, not well-formed enough to put coherence to yet, has captured my attention. I believe this decision may be a move in a chess match whose end game has just begun. Perhaps future-site played a part in this political dance after all.
Time for an adult beverage and some speculation.