Chief Justice Roberts’ ruling Thursday in NFIB v. Sebelius is a bitter loss for constitutional conservatives, delivered to us by a judicial Benedict Arnold. Forget the so-called long term victory contained in the commerce clause limitations. There’ s no denying that Roberts’ majority opinion represents a clear judicial defeat for defenders of the Constitution and individual liberty.
Roberts knew he was conjuring up a decision that would make the American people wretch. But judicial activism to limit the power of the individual and extend the powers of the federal government has been going on since the Supreme Court first caved to FDR’ s power grabs in a series of capitulations that culminated in the odious 1942 Wickard v. Filburn decision.
Now comes the equally odious NFIB v. Sebelius decision, in which Roberts rewrote a law from the bench. The Chief Justice wasn’t writing a legal opinion. He offered a political solution. More importantly, he just told us which team he’s playing on. He’s with the anti-constitutionalists. His legacy as their champion is secure.
Roberts’ decision to call the individual mandate a “tax” placed the Patient Protection and Affordable Care Act in violation of the Constitution’s Origination Clause. Article 1, Section 7, Clause 1 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
The legislative history of the Patient Protection and Affordable Care Act is clear. The only thing about the law that “originated” in the House of Representatives was the bill number, H.R. 3590.
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