Deferred Bitching

There are some smart people out there. Quite a lot of them have been blogging away about the Supreme Court's recent ObamaCare decision. Unfortunately, not all of them are "up" on the history behind Chief Justice Roberts's supposedly surprising opinion.

Consider this emission from DrewMusings:

Calling this a "victory" or "a gutting" is like saying someone who was mugged "won" because they were only beaten to a bloody pulp instead of killed. Well, OK but in the real world the proper outcome is not to be assaulted at all. That's the true victory.

Of course this also ignores two minor details, the mandate stands and now Congress may impose a penalty, er tax, on economic inactivity, something no one thought they could do before yesterday. Do you really think there aren't liberal policy gnomes in Congress, think tanks and universities already hard at work coming up with new and exciting ways to make mischief with the tool Roberts just handed them? If you don't, you've missed the last 80 or so years of the Democratic (and sadly, all too often the Republican) party's history. [Emphasis added by FWP]

Ignore the execrable grammar; it's the emphasized clause that counts. Lawrence Auster concurs, and heaps scorn upon those of other mind. But why?

Because they've forgotten the history of the New Deal. Because they've failed to remember that ever since Associate Justice Harlan Fiske Stone told Secretary of Labor Frances Perkins that the taxing power would justify any and every claim of expanded powers FDR planned to make, the taxing power has been regarded by the Court as unbounded in scope.

Justice Stone wasn't the first jurist to suggest that the Constitution, in Article I, Section 8 as later modified by the Sixteenth Amendment, specifies no limits on the purposes to which the taxing power could be legitimately put. However, he was the first to sit on a Court successfully bullied by a president of the United States, who, like Barack Hussein Obama, regarded himself as so much wiser and better counseled than anyone else that he could justify the assertion of dictatorial powers.

FDR had the backing of Congress, which functioned as a "rubber stamp" throughout his first term of office. Obama does not...but he has John Roberts, stare decisis, and the precedents set by the New Deal Court.

The time to bitch about all this isn't the year of Our Lord 2012. It was 1935, a year that's well behind us.

Roberts's hairsplitting is important for another reason, as well: It prevented the Ginsburg opinion, which explicitly cited the Commerce Clause as the basis for ObamaCare's Constitutionality, from being the majority opinion, and thereby commanding precedental power under the stare decisis doctrine. Indeed, there was no other way for Roberts to rule ObamaCare's individual mandate Constitutional without rendering the Commerce Clause infinitely elastic.

Please don't mistake me: I regard Roberts's decision as a serious jurisprudential error. No judge has the authority to rewrite a litigant's case for him, which is what Roberts did to reach the decision he rendered. However, given that Roberts's #1 priority was to find a justification for ruling in favor of ObamaCare's individual mandate, the course he followed was the only one available to him.

Was the decision a "victory for conservatives?" Unarguably not. Had Roberts had the courage to strike ObamaCare down in its entirety, the nation would be better off by far, at least in the short term. Such a decision would have been justified on very simple Constitutional grounds:

• The Administration argued that the mandate is a penalty rather than a tax, and justified as "affecting interstate commerce;"
• Federal law currently forbids the sale of medical insurance across state lines;
• Therefore, there is no imaginable rationale by which the Commerce Clause pertains to medical insurance or any aspect thereof, by prior Congressional enactment;
• Congress's enumerated powers do not include the power to impose a penalty upon an American merely for existing;
• Though such a penalty might be "necessary" to effectuate some enumerated power, it would not be "proper," as it would vitiate the presumption of innocence that underpins our scheme of penal law and jurisprudence;
• Therefore, Congress is prohibited from imposing such a penalty under the Tenth Amendment.

(Get away from me with that "but are you a lawyer?" crap; if the law is to be exclusively the province of lawyers, then an oligarchy of licensed attorneys is unavoidable, after which the famous citation from Henry VI applies. Besides which, lawyers as a professsion just aren't that bright. How could they be? There are over a million of them in the United States today. Law simply isn't a profession that demands high intelligence. The principal requirements for the practice of law are a good memory and a cultivated ability to strain the English language completely out of shape for one's client's purposes. At any contest of the intellect you can imagine, I'd send virtually any lawyer in America home in a barrel.)

But Chief Justice Roberts was apparently too concerned with other matters -- the possibility of being run over in the Supreme Court parking lot, perhaps? -- to attend to his Constitutional duties. Granted that manly courage isn't a quality we seek explicitly in a federal jurist, it certainly would have been nice if this Bush II nominee had exhibited enough manhood to justify the river of scorn poured on poor, all-but-forgotten Harriet Miers.

If there's a silver lining to this decision, it's the energy that's consequently poured into the effort to remove Obama from the Oval Office, and the Democrat majority from the Senate, this coming November. But that's a matter of accumulating potential, not an immediate actuality. There's work to be done, and only the American people to do it. Whether we're up to the task, and angry enough to do a proper job of it, remains to be seen.