A growing chorus understands.
Conservatives are scrambling to salvage something from the decision of their once-great judicial hero….
All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power…. The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion … was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.
Outside the court, the conservatives who thought they knew Roberts seemed baffled. “For whatever reason, and you’ll have to ask Justice Roberts, he re-wrote the statute,” said Mike Carvin, who argued against Obamacare in the case. “I’m glad he re-wrote the statute rather than the Constitution, but none of it can pass rational scrutiny.”
…the Court is tasked with protecting the Constitution and clearly failed to do so here. A key pillar upholding limited government has been kicked away. If the practical result is to energize opposition to President Obama’s reelection, it may turn out to a proverbial blessing in disguise. But there is no point in denying the damage.
… even the five votes limiting Congress under the Commerce Clause pale against the Chief Justice’s infinitely elastic and dangerous interpretation of the taxing power. Nancy Pelosi famously said we need to pass ObamaCare to find out what’s in it. It turns out we also needed John Roberts to write his appendix.
The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken.