The Roberts Trap Is SprungBy Bill Dunne
The chief justice, an appointee of President George W. Bush and reputedly a constitutionalist in his jurisprudence, set his diabolical trap (diabolical to Democrats) on June 28, 2012, when he joined with the four liberal justices on the Supreme Court to uphold the constitutionality of ObamaCare. Conservatives and Republicans across the land were apoplectic. But in hindsight, it appears that Roberts actually saved the Republican Party from going into a death spiral and imperiled the Democrats instead. This suggests amazing foresight, but it wouldn't be the only instance.
For example, Tevi Troy, a scholar at the Hudson Institute, made a remarkable prophecy a year and a half before the Court's decision. It was soon after the November 2010 midterm elections, in which Democrats in Congress and in state legislatures suffered huge losses. In an article in Commentary magazine, Troy wrote:
The Pyrrhic victory Democrats secured for themselves [when President Obama signed the Affordable Care Act into law] may prove not to have been a victory at all but rather an ever-roiling, ongoing, and recurring act of political and ideological self-destruction.
How's that for prescience?
When the Supreme Court ruling came down, a shocked conservative historian, Paul Rahe, cited as a cause the PR pressure that President Barack Obama had been exerting on the Court in the fevered weeks leading up to the decision. It was "an act of judicial cowardice," he fumed. But then he added, "There is, I am confident, more to it than this."
What that "more" consists of has been growing more apparent by the day -- with the ongoing and painfully obvious parade of disasters, and the accelerated emergence of government by decree.
And yet the Court's ruling was not all bad news for conservatives. There were multiple settings to the Roberts trap. A majority that included Roberts rejected the government's contention that Congress had authority under the Commerce Clause of the Constitution to force private individuals to buy health insurance. Justice Anthony Scalia nailed it, saying that to accept such a notion would "make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."
The Court also invalidated two key provisions that were held to violate state sovereignty and the foundational concept of federalism. Each state was thereby free, if it chose (as many have), to decline the federal invitation to expand its Medicaid program, and free to not set up a state exchange to sell ACA-compliant policies.
ObamaCare's goose might have been cooked right there. But Roberts then turned to what seemed the most farfetched of the alternative arguments for upholding the law. And he embraced it.
That argument asserted that the law's explicit "penalty" for an individual who failed to buy health insurance was not really a penalty. Lower courts had deemed a penalty to be of doubtful constitutionality. So Roberts agreed with the government's lawyers that the "penalty" was actually a tax, and the levying of taxes is of course a legitimate power of Congress.
Law rewritten on the bench has seldom had such a glaring example. In effect, Roberts single-handedly forced all Americans to face -- up front and personal -- the epic political malpractice that is ObamaCare. "It is not our job," he added, "to protect the people from the consequences of their political choices." Wow. Tough love.
The thing is, however, that the decision has spawned another Great Awakening, because ObamaCare is a civics lesson from hell, with vast implications for America's future. This would not be happening if the law had been squelched in the cradle. People who ordinarily couldn't care less about wonky debates over federal power now see that the law has less to do with insuring the uninsured than with one political party's lunge for unprecedented power and control over people's lives.
Imagine, though, if the chief justice had opined as everyone expected him to and joined with Scalia, Sam Alito, Clarence Thomas, and Anthony Kennedy (ironically the swing vote whom ObamaCare opponents were most worried about) to guillotine the law then and there. The reduction of Mr. Obama's "crowning achievement" to just a gigantic waste of time when a dismal economy was begging for attention might well have cost him his re-election five months later.
Howls of outrage would have erupted from every Democrat/leftist stronghold -- from the White House to Congress, from Hollywood to academia, and of course from the establishment media. The din would have been relentless. The smearing of small-government Republicans as selfish meanies would be easy as pie and more effective than ever.
Nancy Pelosi would be speaker of the House again after next November's mid-term elections. Harry Reid would certainly remain as Senate majority leader. President Obama would be striding mightily across the national stage. His promised fundamental transformation of the United States of America would continue. Hillary Clinton would be a shoe-in for the White House in 2016. And "single-payer" -- full-bore socialist medicine -- would be a slam-dunk. HillaryCare redux.
Perhaps worst of all, from Roberts's point of view, the Court's great prestige would suffer. Left-leaning historians, which means most historians, would be lumping the Court's killing of ObamaCare with Bush v. Gore and Citizens United to paint the Court as a right-wing political operation.
My, how different is the real reality. Democrats are looking ahead in abject terror at the November midterms. And when those results come in, when Obama's lame-duckness grows acute, it's possible to imagine conservatives and Republicans being ready to let the far-seeing John Roberts out of the dog house.
Bill Dunne runs an executive-communications consultancy in Norwalk, CT.
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