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Lessons from the Court’s Obamacare Ruling

by George LandrithSupreme Court

What we learn from the U.S. Supreme Court’s decision on Obamacare …  First, the individual mandate is not constitutional under the commerce clause. So ruled the Supreme Court. This was always obviously and self-evidently the case. But in a bizarre twist of events the Court upheld the healthcare mandate on grounds that Congress has broad powers under the Constitution to tax and that as a tax the individual mandate is constitutional.

However, one problem with that line of reasoning is that President Barack Obama and Senate Majority Leader Harry Reid and then Speaker of the House Nancy Pelosi and literally hundreds of other Democrats in Congress steadfastly denied that the mandate was a tax during the debate and before the vote. President Obama repeatedly looked into the camera to make “eye contact” with the American people and said it was not a tax. Obama did not want to be seen as raising taxes so he and his allies vociferously and steadfastly said it was not a tax and that they were acting solely under their power to regulate interstate commerce. And the law itself said that it was not a tax, but simply a regulation under the commerce clause.

Another problem with that reasoning is that if the general power to tax can be twisted and tortured into the power to regulate the private behavior of citizens, then there is no real limit to what Congress can do and the entire Constitution has been turned on its head. During oral argument the government’s lawyer who argued in favor of ObamaCare said that if the Court upheld the law, it would not authorize Congress to force Americans to buy or eat broccoli. But thanks to John Roberts’ reasoning, Congress can now use its power to tax to require Americans to do whatever Congress thinks is best — eat broccoli, buy government manufactured cars, perhaps even buy government mandated books. Thanks to Chief Justice Roberts’ vote on the interstate commerce clause, Congress cannot use that clause to require you to buy health insurance or to eat broccoli for that matter. But thanks to Roberts’ vote, it is also true that Congress can penalize and fine you for not buying insurance or for not eating broccoli. That, of course, is a distinction without a difference. And Roberts is smart enough to know that or at least we all thought he was.

Second, President Obama and Democrats in Congress brazenly lied to the American public when they said the mandate was not a tax. They did not want to admit to a huge tax so they imposed the individual mandate claiming use of the interstate commerce clause. But after the final vote was cast and as soon as the Courts began to say that Congress does not have the power to do this under the interstate commerce clause, both Obama and the Democrats in Congress began to argue that their powers to tax are very broad and thus the healthcare bill was constitutional. It may not be polite to say, but the truth requires that it be said — Obama and his allies in Congress flat-out lied. We are used to politicians lying — it’s almost axiomatic. But now the United States Supreme Court has shamefully joined in the lies and is facilitating and empowering those who lie as freely as they breathe. Sadly, the Court has become just another political operation where lying and dissembling take precedence over the law and truth. Ironically, John Roberts brought this insanity about because he was worried the Court might be perceived as political.

Third, the U.S Supreme Court can be bullied or at least John Roberts can be bullied. President Obama and many liberal Democrats in Congress engaged in a systematic effort to bully the Court. It worked. The Court caved or John Roberts caved. The President and Congressional allies argued that if the Court struck down the individual mandate, it would be illegitimate judicial activism. It was a coordinated and brazen attempt to bully the Court. Sadly, Roberts allowed himself to be bullied. This is not the first time Obama has attacked the Court. In his first State of the Union address, he attacked the Court and grotesquely mischaracterized one of their decisions. Evidently, Roberts feared Obama using his powerful bully pulpit to further demagogue the Court. Roberts decided that that Court could not weather the barrage of attacks that were surely to come from the President and his team — that the Court by a slim majority of mostly rich white men took away your “free” healthcare. It is shameful both that the President and his liberal allies in Congress engaged in such dishonest demagoguery and that the Chief Justice succumbed to these school yard bullying tactics.

Fourth, elections matter. Americans must remember that they cannot continue to elect officials who think that they can spend our money better than we can and expect to long enjoy freedom. We cannot elect officials who believe that they can run our businesses better than we can, raise our children better, and make life’s everyday decisions better, and still enjoy fundamental liberty. We cannot elect officials who view the Constitution as an impediment to good government, rather than the standard by which good government is to be judged and continue to expect to be free. We cannot elect officials who view our money as their money and expect to be economically secure.

This is precisely why it is dangerous to take risks on unproven, untested ideologues who believe themselves to be our rulers and us their subjects. We all hoped the Court would save us from having foolishly entrusted Obama, Pelosi, Reid and others with power they are unworthy to wield. The Court failed us today. But the truth is the American people failed themselves years ago by forgetting the fundamentals of liberty and entrusting people with power who disregard our founding principles. We had better start caring what the Constitution says and electing officials who care, or we will bear the shame of killing off what our fore-bearers began in 1776. As shameful as John Roberts unprincipled and waffling behavior was, America’s rejection of its founding principles is even more troubling and more harmful to our freedoms.

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George Landrith is the president of Frontiers of Freedom, a public policy think tank devoted to promoting a strong national defense, free markets, individual liberty, and constitutionally limited government. Mr. Landrith is a graduate of the University of Virginia School of Law, where he was Business Editor of the Virginia Journal of Law and Politics. In 1994 and 1996, Mr. Landrith was a candidate for the U.S. House of Representatives from Virginia’s Fifth Congressional District. You can follow George on Twitter @GLandrith.