Of all possible outcomes in the Obamacare case, a ruling that found the law constitutional based on congressional Commerce Clause power would have been the worst. This was the approach the four left leaning justices would have preferred, but Chief Justice Roberts, who chose to expand Congress’s power in a different direction, prevented such a ruling.
Rather than grant Congress blanket control over every American via the Commerce Clause, Chief Justice Roberts bestowed on Congress the power to punish Americans for bad behavior. By actively rewriting Congress’s law as a tax, Roberts saved Obamacare from the quick death it rightly deserved and expanded the scope of congressional taxing power infinitely. Congress can now tax anything it likes, or doesn’t like, for that matter.
Some apologists on the right have promoted the idea that Roberts protected the Constitution by writing his decision narrowly, blocking further abuses of the Commerce Clause. This seems to miss the point. By drawing a line in the sand on the Commerce Clause, Roberts has tacitly validated all previous Commerce Clause abuses. And by creating a new precedent for the taxing power, Roberts has unleashed a Pandora’s box of potential constitutional distortions.
By attempting to “split-the-baby,” Roberts has given the left a new precedent for federal power with which to burden Americans. In the past, every attempt to compromise with big government proponents has left small government types with a headache. The perfect example is Senator Orrin Hatch’s belief that he “rolled Ted Kennedy” on negotiations for SCHIP. Hatch called SCHIP a success because it didn’t have everything the left wanted. Talk about not seeing the forest through the trees. Hatch stamped his approval on a massive expansion of government and was foolish enough to think he won. Apologists for Chief Justice Roberts are echoing Hatch’s ignorance today.
