A devastating decision
Originally published at The Daily Caller on June 28, 2012.
By upholding Obamacare, the Supreme Court — a court nominally “conservative” and supposedly “non-activist” — has driven the final nail into the coffin of limited government. Some conservatives may find solace in the fact that the majority opinion by Chief Justice John Roberts (appointed to the high court by George W. Bush) did not find Obamacare’s individual mandate justified by the Constitution’s Commerce Clause, but they’re kidding themselves if they think such analysis will provide any basis on which to limit the damage wrought by this decision.
Make no mistake about it: This decision derails any hope we might have had that moves in recent decades to expand the power, cost and scope of the federal government might be reversed or at least slowed. And the fact that this decision was rendered by the nation’s highest court, which supposedly has a “conservative” majority, will make it significantly more difficult in the years ahead to turn back the rising tide of government power. Roberts’s opinion will be cited for decades to come as precedent for federal government mandates.
The extent to which Chief Justice Roberts went to try and limit the scope of this devastating decision — including “dicta” that the court was not giving its imprimatur to the propriety of the policies underlying Obamacare — is belied by the degree to which he went to find a basis on which to uphold the constitutionality of the law’s individual mandate provision. The fact that he found that this power derives not from the Commerce Clause but from the Taxing Clause is largely irrelevant. It’s still an invitation for future presidents and Congresses to pass virtually any legislation and issue virtually any mandates they want, confident that the Supreme Court will find some basis on which to justify what they have done.
The Taxing Clause, which was not cited as a primary basis on which Obamacare was either passed by the Congress or signed by the president, was deemed a proper foundation for instituting one-size-fits-all health care coverage for Americans. Tragically, this foundation of sand on which Roberts and his majority colleagues based their decision now takes on enhanced power as a basis on which the government will be able to seize freedom from the people. The power to tax now has been accorded broad and independent status as an underpinning for activist government, without really having to link its use to a defined, “necessary and proper” power in the Constitution.
Mitt Romney has commendably asserted that if elected, his first priority will be to repeal Obamacare. Unfortunately, unless he simply declares that he will not enforce the laws of the land — as President Obama likes to do — it will be neither that simple nor that quick. Obamacare is now the law of the land and it has the Supreme Court’s seal of approval to back it up. The damage truly has been done, and we will not soon — or perhaps ever — undo it. Thanks, Chief Justice Roberts.