Thursday, June 25, 2015

You're a careless lad, but you're still my son

Obamacare decision turns Roberts from conservative dream to nightmare | MSNBC

The history of Obamacare's transit through two Supreme Court challenges reminds me of a column by William F. Buckley, Jr. that I read years ago.Buckley said there was a liberal law professor at Notre Dame who used to confuse his students every year by passing out a collection of quotes criticizing decisions by liberal Republican Chief Justice Earl Warren in terms so harsh that one would have taken them for the most rabid propaganda of the far right.In fact, they were simply excerpts of dissenting opinions by Warren's associate justices. Their dismay was shared by some legal scholars, even those who shared Warren's progressive views. "Alphaeus Mason of Princeton applauded the decision in Brown v. Bd. of Ed," Buckley wrote, "but tore his hair at the legal reasoning behind it."

Twice, now, John Roberts has shown good sense and a good heart while egregiously disqualifying himself as a constitutional jurist. Sorry, folks--it's open and shut.

The Affordable Care Act needed to be saved, and the right's opposition to it was patently absurd. ACA was the spiritual child of what was originally a conservative idea, promoted by the Heritage Foundation 20 years ago. It is one of the best things that has ever happened to health care, and by deciding as he did, Roberts actually saved the GOP from impaling itself on its own perverse opposition, which would certainly have happened had ACA been gutted. The Congressional Budget Office only recently released a report projecting that if ACA were no longer in effect, the deficit would rise by $137 billion over the next decade.

But Roberts is not the President. His position, as he noted in his written decision, is to "say what the law is" and "respect the legislature." In both of those, he has spectacularly and laughably failed.

The first failure was in the first challenge, a couple of years ago, over the individual mandate. By no conceivable principle of logic or ethics can a government compel me to engage in economic activity in which I profess no interest. It may, to be sure, require me to have a license and insurance *if I wish to drive,* but it may not *compel me to buy a car in the first place.* Federal judge Fred Vinson of Florida laid out the whole history of Commerce Clause jurisprudence in his earlier decision. There really was nothing more to be said.

But Roberts still said it. He called the individual mandate a tax, something the Administration itself denied, and, thus, saved glib, clever Barry, the man who had become president of Harvard Law Review without ever having authored a single article, from his own slapdash approach to one of his own "signature" achievements.

It is important to understand this. Roberts did not function as a judge. He functioned as a sort of super-President, the President's wise and understanding dad, saving the young whippersnapper from his own sloppiness.

He did so again today. Yes, of course it is obvious that the intent of the act passed by Congress was that people would buy insurance through public exchanges, even if states demurred.

Well, then, they should have freakin' *said so,* thank you.

But once again, glib, clever Barry couldn't be bothered with anything so tiresome as to actually draft a sound law. He perhaps expected the act to be hailed for no reason but that he had been the author and, as all right-thinking people know, he's just, well, so interesting and wonderful and everything.

And so, once again, it was up to Dad Roberts to save Barry from himself.

A jurist would have written that while the intent of the law was clear and its salutary effect on public policy evident, the law *as drafted* was defective, and that it was unwise to decide legal questions based on deliberate, if well-intended, misreadings of the plain language of a sloppily worded statute. Remember, this wasn't some tortuous deliberation of the original intent of men 200-years dead, as to what they must have meant by the 2nd amendment; this was an easy issue in response to the carelessly worded text adopted only a few years ago by an immature man who takes a little too seriously the admonition of the Gospel to "be careful for nothing."

For Roberts to decide as he did showed a warm heart. For him to defend it on the grounds that he must "say what the law is" and "respect the legislature" is, under the circumstances, simply inane. Saying "what the law is" is precisely what the Roberts Court did *not* do; otherwise, the Affordable Care Act would be on its way, in redrafted form, back to face a hostile and wary Congress.

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