Chief Justice John Roberts’ surprising vote in favour of upholding President Barack Obama’s healthcare law has made him the new hero of the political left, while some conservatives have already turned on him in record time.
But while Roberts may have saved Obama’s signature domestic legislation — and perhaps his reelection campaign — by siding with the court’s liberal wing, he actually did it in spite of Obama, not because of him.
Roberts’ opened his opinion today by declaring, unequivocally, that the individual mandate — which requires people to buy insurance or pay a penalty — is not constitutional under the Commerce Clause or the Necessary and Proper Clause. It’s a direct shot at the Obama administration’s defence of the law’s constitutionality, which largely relied on those two clauses, which give Congress the power to regulate commerce and to enact provisions that are necessary to carry out its laws, respectively.
Here are the key excerpts:
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open anew and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do.Upholding the Affordable Care Act under the Commerce Clause would give Congress the same licence to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce,not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited andenumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
…Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding lawsunder that Clause involved exercises of authority derivative of, and in service to, a granted power. The individual mandate, by contrast, vests Congress withthe extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scopethose who would otherwise be outside of it. Even if the individualmandate is “necessary” to the Affordable Care Act’s other reforms,such an expansion of federal power is not a “proper” means for making those reforms effective.
Instead, Roberts argued that the individual mandate is constitutional because it enacts a tax, not a fee. Obama’s Solicitor General Donald Verrilli made the exact opposite claim in his oral arguments to the Supreme Court last March.
It seems like a very real possibility, then, that when the glow of today’s victory wears off, Obama may find that Roberts’ ruling was actually a Trojan Horse. Democrats have adamantly argued that the individual mandate is not a tax, but that claim will hold a lot less water after today’s decision. Meanwhile, Republicans, despite their newfound dislike of Robert immediately seized on the “Obamacare raises taxes” attack line, and are already raising the specter of the IRS to fire up the conservative base.
Watch the video below to see what the decision means for both political parties moving forward.
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