The Roberts’ Legacy

Whether it was his aim or not, Chief Justice John Roberts has cemented his legacy. As the Chief Justice, the swing vote and author of the opinion upholding ObamaCare, he will be the one most associated with this ruling, a ruling that renders the constitution null and void. 

His motives are irrelevant.  It is the effect that will be remembered.    To the court’s credit, it did rule that ObamaCare could not be supported by the commerce clause, but Roberts’ structuring of the ruling so as to announce this first, will go down in as one of the worse bad  jokes in history, for the media quite understandably announced this as it was read, instilling a sense of relief among millions of opponents of the bill, as if toying with them, only to stomp out that relief a few moments later when Roberts invented a new rationale so as to keep the law in effect anyway.

This new rationale is the most insidious part of the ruling.  Robert’s ruling did go a long way towards restoring the commerce clause to it proper place.  But then it turned around and rendered it and the rest of the enumerated powers, along with the very concept of limit government that is at the core of the Constitution, irrelevant.  

Thus in many respects the court had two rulings.  The first was that ObamaCare was unconstitutional under the commerce clause. The second was that the commerce clause and the rest of the clauses defining the role of the government are null and void.  Congress can do pretty much whatever it wants, or at least whatever the courts lets them. All they have to do is structure it as a tax and they are home free.

Perhaps even worse is the court’s complicity in deception.   Supporters of the law were adamant that this was not a tax, and it is almost certain that had it been called a tax, it never would have passed. But even though its supporters declared it was not a tax, and took great pains not to call it a tax, Roberts considered it a tax so as to give himself a fig leaf of justification. Thus we are left with a bill that never could have passed if considered a tax, but could only be constitutional, at least according to Roberts, if it is considered a tax. A very real question is that now that the court has ruled, is it still a tax, or has it reverted back to a penalty?

As I wrote in my post before the ruling, the ruling itself will have little lasting effect on Healthcare.  The bill is an unworkable mess and cannot remain as it is. The ultimate fate of health care will be determined by the election in November, not this ruling.  This is the real damage of Robert’s ruling.  For in justifying what would have otherwise been an unconstitutional act by calling it a tax, Roberts did not really affect the ultimate the fate of health care.  But he did effectively ended constitutional rule in the United States.

We are no longer under the Constitution. We are under the Court, ruled by whatever the current majority of the court says, and the court has given the federal government a free hand to do whatever the powerbrokers in Washington D.C. want to do.  It should be remembered that ObamaCare was not passed as an exercise of the will of the people. It was rammed through with raw political power against the will of the people. It remains extremely unpopular.  

Robert’s ruling breaks new ground and vastly expands the reach of government.  By itself it makes a mockery of the concept of a limited government of enumerated powers that was once the law of the land called the Constitution.  But history is very clear that this is not the end.  This is just the beginning.  If allowed to stand, this ruling will now become the foundation for a whole new area of law. Intrusions by the federal government once inconceivable, are now fresh new fields to be explored and developed.

Thus Roberts’ legacy is set. He will forever be the man who killed the Constitution.  It only remains to the people, and the election in November, to see if his ruling will be allowed to stand and to see if the Constitution can be resuscitated.