Carl Cannon | John Roberts, Intimidated by the Left?

Carl Cannon, Real Clear Politics:

On a party-line vote in March 2010, Democrats passed the Affordable Care Act, a sweeping law that sought to reduce the estimated 50 million Americans without medical insurance. It provided incentives—sticks and carrots—to states to expand Medicaid to the working poor, prevented insurers from targeting people with pre-existing medical conditions, required employers’ health plans to keep young people on their parents’ plans up to age 26, and mandated that every American enroll in health insurance plans, on penalty of a fine to be levied by the IRS.

Two main legal challenges emerged from the myriad litigation over this law. The first reached the high court in 2012. Opponents had argued that the Constitution’s 10th Amendment “commerce clause” prohibited Congress from mandating the commercial activity of Americans who have no desire to engage in the activity in question—in this case, purchasing medical insurance. Justice Roberts, after signaling sympathy with this view during oral arguments, rejected it. He cast the deciding vote in a 5-4 decision, and wrote an opinion that struck his critics as tortured: the Obamacare “penalties” prescribed in the law for those who didn’t want to buy medical insurance were really taxes—and Congress has the power to tax.

The second major challenge centered on ambiguous language in the original statute. The ACA created government-backed “exchanges” where the uninsured could purchase insurance. The rub here was that the law offered subsidies only to people buying insurance from “an exchange established by the state.” Many states chose not to set up exchanges, so the federal government did it for them. But these exchanges exceeded the actual authority of the law, or so the plaintiffs claimed.

Again Roberts disagreed, siding with the court’s liberal bloc, and this time bringing Justice Anthony Kennedy along with him in a 6-3 decision. The words at issue, he wrote, had to be understood as part of Obamacare’s larger framework. Some conservative legal scholars went bonkers. “The Supreme Court today put its stamp of approval on President Obama rewriting the law as he chooses,” proclaimed Peter Ferrara, senior fellow of The Heartland Institute. “The Separation of Powers has fallen, the rule of law has fallen, the Supreme Court has fallen. President Obama now has the power to rule by decree.”

Conservatives knew where to point the finger:  “We might as well call the law RobertsCare,” said Ilya Shapiro, a Cato Institute attorney. This echoed the puckish dissent by Justice Antonin Scalia, who ridiculed the majority’s rationale as “interpretive jiggery-pokery.” The majority, Scalia said suggested, had performed “interpretive somersaults” to justify a political decision: keeping Obamacare on the books. Reading from the bench, Scalia added, “We really should start calling this law SCOTUS-care.”


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