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Obama will have to defend a bad law, rather than run against a Supreme Court which could have made him appear a sympathetic victim and, therefore, his re-election more likely

John Roberts’ “Gold Lining” Moment



Before everyone becomes too apoplectic and apocalyptic about the horrendous Supreme Court ruling upholding the Health Care Affordability Act of 2010, let’s pause to find the silver lining behind this veritable cloud.
In fact, let’s call it a gold lining. Remember that 26 states, their governors and their attorneys general, brought the case to challenge the constitutionality of what has become known as ObamaCare. This represented significant pushback against the aggrandizement and wielding of federal power. The strength of the conservative movement provided these elected officials with the cover to do what not too many years ago would have been considered too audacious or even “extreme” in fighting for limited government. That consolation prize being acknowledged, the 5-4 decision is a modern day of infamy in the history of the United States, and for the Supreme Court comparable to Dred Scot ruling in 1857. Then the Supreme Court ruled that a fugitive black slave named Dred Scott could be returned to his master even though he had already resided in a Free State. Moreover, the court decided then that Dred Scott as a slave was not a person and therefore had “no standing” to bring the case. That Supreme Court ruling was one of the defining moments before the 1861-1865 War Between the States.

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In the immediate aftermath of the ObamaCare ruling, words of catastrophe are being aired, such as that Supreme Court Chief Justice is a closet Statist, or that the United States has officially become a police state. This rhetoric is misguided and premature. Let’s remember that the Tea Party Patriot Movement enjoyed a great victory not less than one month ago by defeating the recall election of Wisconsin Gov. Scott Walker, who defeated and bettered the bureaucracy of his state by ending collective bargaining for public sector employees. Had that battle been lost, that would have been a cause of concern and worry that the American Experiment of Liberty for All was coming to an end. I do not believe, however, that that’s what happened with John Roberts and the court and on ObamaCare. If someone wants to operate a motor vehicle in the United States, government requires that person to have a license and purchase auto insurance. However, that same person can “opt out” by not owning a car. With ObamaCare, if a person declines to purchase health insurance as part of the individual mandate, he or she will face a penalty. Supreme Court Chief Justice John Roberts and the majority decision of the court asserted, that the individual mandate is unconstitutional under the so-called Commerce Clause of the U.S. Constitution, but allowable under Congress’ ability to tax, and that therefore the individual mandate is a tax. That is somewhat of a victory in defeat. Notwithstanding, the Roe v. Wade abortion case in 1973 which is in a class by itself, ObamaCare is the most momentous case on the court docket since Brown vs. Board of Education in 1954. And just as in that case, when the Warren Court ruled 9-0 that state laws sponsoring separate black and white public schools was unconstitutional, so too ObamaCare should also have been defeated unanimously by the Supreme Court. The “individual mandate” in ObamaCare forces the participation in commerce by the requiring the purchase of health insurance. Congress has the power under the so-called “Commerce Clause” to regulate interstate commerce, but not create commerce. The concern with ObamaCare is that if the government can force participation in commerce, its power over our lives is pretty much unlimited. One does not have to have attended law school or even have become an attorney to understand that in a free society, one cannot be compelled to buy a product. Hence one would think that a 9-0 decision against ObamaCare should have been a slam dunk under normal circumstances. However, there are four rock solid liberal justices on the bench. Roberts, therefore, had a major dilemma on his hands: the liberal justices sought legal activism rather than impartiality and doing their jobs, which is to interpret the Constitution. So, no 9-0 decision was forthcoming to reject the individual mandate. However, couldn’t Roberts expect or even convince one liberal justice to do the right thing for the sake of the country and with his vote produce a solid 6-3 majority rejecting the constitutionality of the law, much less than secure the obvious 9-0 outcome? Not with Justices Breyer, Ginsburg, Kagan and Sotomayor. This is where the silver and gold linings materialize. Roberts knew that he could kill ObamaCare 5-4 or find a victory in defeat. Had Roberts voted his conscience, he might have precipitated a constitutional crisis in that five unelected individuals had rejected a duly passed law and policy of the Congress and the president. Instead Roberts returned ObamaCare to the political arena and removed it from the legal milieu by saying that the individual mandate is a tax, which Obama and the Democrats said it was not. Because of this, Mitt Romney and everyone else running for public office can say that Obama passed a massive tax increase in addition to engaging in bad social policy, which combined are killing the U.S. economy. By not defeating ObamaCare, Roberts has allowed the debate over it to occur again, but this time the debate can be framed more fairly and less disingenuously as it was by the Democrats in 2009 and 2010. What happens next is that the conservative base becomes energized to defeat Obama in November. In the campaign, Obama will have to defend a bad law, rather than run against a Supreme Court which could have made him appear a sympathetic victim and, therefore, his re-election more likely. Roberts’ move was not a “surprise,” but a calculated contribution to the Republic, by asserting that ObamaCare should be defeated in Congress, rather than in the courts. Yes, in a perfect world, ObamaCare should have been defeated 9-0. However, we don’t live in that world. Hence, given the circumstances of four liberal justices, this is the best deal we can get. We conservatives should be proud of Roberts for not doing what we abhor: having activist federal judges subvert the will of the people even though it would have been easy and expedient for him to do so.


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Daniel Wiseman -- Bio and Archives

Daniel Wiseman is an independent political commentator, who focuses on national and international affairs. He spent nine years as a professional journalist in Wyoming before working in fund-raising, non-profit management, and is now working in New York City. Wiseman focuses his writing on how to bring the United States back to its Constitutional moorings.  He writes exclusively for Canada Free Press.


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