A New Birth

I'm back and boy, did I pick some week to take a break.  So I guess the Supreme Court issued some important ruling on Thursday... .

I'm just starting to dive into the amount of material already written about NFIB v. Sebelius, otherwise known as the Obamacare decision, so it will probably take at least a few posts to begin to parse everything out.  But I am already taking away a few important things:

• In a 5-4 decision, Chief Justice Roberts, along with Justices Ginsberg, Breyer, Sotomayor, and Kagan, found that the individual mandate portion of the Patient Protection and Affordable Care Act, among other major provisions of the law, is constitutional because it emanates from Congress's taxing power under the Constitution (Article I, Sec. 8).   The only section struck down (by a 7-2 majority) was the federal government's plan to withhold Medicaid funding from the states if they choose not to comply with that plan. 

• Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito -- Ginsburg issued a dissent, which was joined by the other three liberals, in which she argued that the individual mandate was constitutional, even under the Commerce and Necessary and Proper Clauses -- smashed the Left's Commerce Clause and Necessary and Proper Clause arguments.  But for Roberts and the majority, instead of the government being able to compel citizens to do commerce, they can now compel citizens to transfer money so that it can be taxed.  I have already read a number of conservatives jumping for joy with Roberts' demolition of the main liberal arguments in favor of Obamacare, but this truly is a distinction without a difference.  (As Tommy DeSano has written, "Every tax has at its core the prerequisite of a transfer of money or value. Thanks to the ObamaCare ruling, not transferring money or value may now be taxed, the precise opposite of what a tax has been in the history of jurisprudence.")

• Charles Krauthammer and George Will, along with numerous other conservative commentators, have tried their best to twist out some kind of originalist or conservative reading out of what Roberts did in his majority opinion, but this really misses the forest for the trees.  Roberts may have stopped a leaking hole in a dam with some chewing gum , but he also helped prepare the explosives at the base of that very same dam. 

•  Jonah Goldberg has rightly called  the liberal and conservative arguments that praise Roberts for his "apolitical" stance in siding with the liberal wing of the Court as BS:

 In other words, if five conservative justices rule according to their well-known convictions, it’s illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law, then that amounts to “leadership.”

• Rich Lowry offers this devastating indictment of the effectual truth of what the Supreme Court did on Thursday:

 Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.

 As Rich notes, the tax argument was something that the Obama Administration vociferously denied when selling the plan to the American people.  The Administration's lawyers only used this argument in mid-March of this year when they argued their case in front of the Supreme Court--of course only on the off days from their other argument that it was not a tax but a penalty.

• Trying to write the next Marbury v. Madison or not, Chief Justice Roberts has done great damage to the Constitution. 

This country may have just had a new birth with this decision (of course, we won't know more fully until after the elections in November).  But it still remains to be seen whether that birth is in freedom or something more akin to tyranny.