United Liberty

The narrative from some conservatives — including Erick Erickson, Jay Cost, Mark Tapscott, and George Will — is that Chief Justice John Roberts, who was part of the majority in last week’s decision to uphold ObamaCare under the Taxing Power of Congress, is playing a chess game instead of checker. In short, they seem to believe that Roberts has provided a political way for Republicans to use repeal of ObamaCare as they center-piece of their campaign this fall.

Rather than writing my initial thoughts Chief Justice Roberts on Thursday or Friday of last week while I was still trying to make sense of what the hell happened, I’ve spent the weekend reading the various takes on the case ranging from the understandably enraged to Roberts’ afformentioned apologists. My thoughts come down somewhere in the middle. I’m not going to call for Roberts to be impeached, but I’m not happy about the decision because it has provided another avenue for government to grow.

Roberts was originally a vote against the mandate: It has now come to light that Chief Justice Roberts was originally prepared to vote to invalidate the individual mandate, but switched. Conservatives on the court, including Justice Kennedy, tried to sway him; however, he wasn’t listening. CBS News reports that Roberts may have switched his vote because he was worried about public view of the court and the external pressure from supporters of the law, including President Obama.

That’s not exactly good news, and if anything it strikes me as an incredibly flimsy movitation given that the public is opposed to the law.

Courts are not a place for politics: If Roberts switched his vote out of some long-term political view, which now doesn’t appear to be the case, then I have a big issue with that. Call me “old fashioned,” but courts are supposed to view laws in terms of their constitutionality; not out of a larger political game, especially one where uncertainty is so clear — as is often the case with elections.

If Roberts view is, as a Randy Barnett has said, to throw ObamaCare into the political process, then he is actually punting on the Supreme Court’s responsibilities to the whims of voters. Barnett believes that this is “easily fixed” given the unpopularity of taxes, but I’m not so sure of that given the popularity of poorly conceived Obama’s proposed tax hikes on higher-income earners.

Expanding the Taxing Power: As I mentioned earlier, a majority of the Supreme Court rejected the Obama Administration’s argument that mandating health insurance coverage was a valid exercise of congressional power under the Commerce Clause. As Tom Scocca explains, Roberts rejection of Commerce Clause arguments is a “substantial rollback of Congress’ regulatory powers.

But whatever win can be taken from that seems to be lost since the Supreme Court vastly increased the Taxing Power of Congress. We’ve essentially traded one troubling view of the law for another. And as Justice Anthony Kennedy explained in his dissent, the Supreme Court has “impose[d] a tax when Congress deliberately rejected a tax.” Kennedy notes that this “amounts…to a vast judicial overreaching.”

The Obama Administration itself may have argued that the individual mandate was a tax, but Congress did not intend for it to be. The conservatives on the Supreme Court, including Justice Kennedy, noted that “[j]udicial tax-writing is particularly troubling.” This is because, as Conn Carroll explains:

The Roberts decision effectively removes this check on Congressional power. If you doubt this conclusion just examine Roberts’ own opinion, which offers an example of how a court could justify a mandate to buy energy efficient windows as a tax (pg. 39).

So not only has the Roberts Court kept the mandate in place by essentially re-writing a law from the bench, it has provided a play book for which statists can use it at some point in the future to mandate some other ill-conceived plan to grow government.

If Roberts is playing chess, for which team is he playing?