Not with a bang but a whimper

John J. Hopkins Jul. 11, 2012, 10:59am

"This is how the world ends... not with a bang but a whimper"... T.S. Eliot

As I read all 197 pages of the Supreme Court decision on "Obamacare," I could not help but think, "Is that it?" Indeed, the most anticipated ruling in years — purposefully held back to the last day of the session — was foretold to be Armageddon in pinstripes, a final resolution to the hotly debated social issue of our times. Both sides expected a conclusion, some clear answer to the questions of constitutionality.

Instead, we received a disjointed, disingenuous and dishonest opinion from Chief Justice Roberts, one in which the author's true motives remain the subject of intense speculation.

The court by way of the Roberts' opinion, joined at least in part by the four consistently liberal justices, held the Affordable Care Act constitutional in part, defective in others. Specifically upheld was the centerpiece of the legislation — the individual mandate compelling the purchase of health insurance by individuals and employers. The shock was not the outcome, but the reasoning, or perhaps lack thereof.

Despite the solid arguments of the solicitor general on behalf of Obamacare as a valid exercise of the Commerce Clause, the section of that empowers the Congress to "regulate Commerce between the States," the court — Roberts joined in by the three normally solid conservative justices plus traditional swing vote Kennedy — found the arguments unpersuasive. This should have been the end of the over...losers and precedents established...

But not so.

In a stunning exercise of free falling, the Roberts opinion goes off in a direction neither supported by prior case law, nor permitted by honest intellectual discourse. Calling the mandate not a penalty — a designation therefore requiring the sustenance of the Commerce Clause to exist — but instead a "tax," the opinion defies the chief justice's self-described role as impartial umpire and becomes instead the outcome-driven work of a partisan, one with an as of yet unrevealed agenda. Despite his best attempts to the contrary, Chief Justice Roberts' work has lowered the standing of the court, and reduced its moral authority and credibility.

Briefly stated, federal law requires that before a tax can be challenged, it must first be paid. Then bring your case. Applied to Obamacare, if the mandate was a "tax," then a challenge could not be brought until after implementation in 2015.

But the Supreme Court held for at least this purpose, the mandate was NOT a tax. Then in a 180-degree turn, Chief Justice Roberts, writing it seems for himself alone, held that for purposes of the test of constitutionality, the mandate was a tax... this despite the clear and repeated denials of such by the president and his supporters in Congress. Rather than remain intellectually consistent and ethically responsible, the chief justice contorted the clear meaning of simple words to suit a pre-ordained decision, in the process sinking down to the level of the double-talking politicians, the very actions of whom the court is established to impartially review.

Hidden within the opinion is a strong message to the public: one that essentially tells the American people to start solving their own problems, no help forthcoming from on high.

"Members of this court are vested with the authority to interpret the law; we posses neither the expertise nor the prerogative to make policy judgements. Those decisions are entrusted to the nation's elected leaders, who can be THROWN (emphasis added) out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

With this, the ofttimes uneasy relationship between the court and the American people was once again changed. Declaring that highest judicial tribunal is no longer the place to ask for resolution of social disputes, the Roberts court established new boundaries in the social compact that is America. The communication is crystal clear: If you want to get rid of Obamacare, then get rid of Obama. We cannot and will not do your dirty work for you.

Being cut loose from a false dependency on an activist court can be disturbing, but it is also empowering. It forces recognition that despite the historical surrender of power by the people to the judiciary, it is temporary.

All is not lost. Power can reclaimed. It takes only the courage to do the right... in the face of the politically correct. Be not afraid.

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