“ObamaCare is a tax, not a penalty”: post-mortems

Yesterday yours truly, like approximately 1.2 billion others, reacted within just a few minutes to the Supreme Court ruling on the “Affordable Care Act.” Today I see no particular reason to either correct or to expand on what I wrote then about why the ruling is wrong, but I do see that there have been smart people out there ably gilding the lily that was here planted.

Andrew McCarthy (who has a background as a federal prosecutor) writes: ObamaCare Ruling: Pure Fraud and No Due Process. His excellent column includes the following statement of fact:

[T]oday, the Supreme Court rewrote a law – which it has no constitutional authority to do – and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.

But leave it to Mark Steyn to write the ultimate summation of the entire lurid and horrific mess that this has become, in his column today in the OC Register. Read it all (which won’t be difficult). It’s an out-and-out classic.

Yet, would that there were no need to write a “classic” in response to yesterday’s ruling. Would that instead the deciding opinion had itself been a classic.

Maybe it is a classic, of some sort—that sort being the wrong sort.

While I vociferously disagree with his ruling, I have not sped ahead to hating or despising John Roberts personally as a result of it. I think he made a mistake. We all make mistakes; most of our mistakes, thanks be to God, don’t bring with them the kinds of consequences that accompany a mistake by a Chief Justice of the U.S. Supreme Court. If the ruling is a classic example of anything maybe it is that of a Chief Justice letting confusion and anxiety about his role as “chief” unduly affect his understanding and judgment with regard to the law. He saw that he was in a pivotal position in this case, and, as Chief Justice, that he had the power to write the deciding opinion. He distorted his usually clear-eyed view in the name of striking what he saw as some kind of grand, all-balancing compromise. Ditch the Commerce Clause through which statists seek absolute power, but let the law stand anyway through some sleight-of-hand as an ill-defined extension of the taxing power. He figured, perhaps, that it was the kind of thing that would make George Will happy; in this, at least, he was absolutely correct.

Yet, where does that leave the rest of us?


The U.S. Constitution does not protect us if we simply read and meditate upon it. It is effectively an organizing principle that requires us to act in order to makes its ideas real. In November, we get to act. And many times thereafter. John Roberts may yet get a chance to correct to the pernicious mistake he authored (one which risks negative consequences far beyond the health care debate). But we can’t afford to wait for that possibility. Elections matter. And holding the feet of our elected leaders to the fire matters. It’s time to straighten up, strengthen up, and stock up on some coal.

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