- The Washington Times - Thursday, June 28, 2012

Chief Justice John G. Roberts Jr. ignored President Obama’s words, and instead found a way to uphold his health care law in Thursday’s health ruling.

Despite the president’s repeated assertions during the debates in 2009 and 2010 that the IRS penalty imposed on those who don’t obtain insurance wasn’t a tax, Chief Justice Roberts said it was, in fact, a tax — and that the individual mandate is constitutional as an exercise of Congress’s broad taxing powers.

But at the same time the chief justice also delivered a blow to Mr. Obama and others who have claimed broad powers under the Commerce Clause, saying Congress could not have used that to compel Americans to buy insurance. In doing so, he set a real limit on Congress’s powers under that clause, and ended a century of expansion.

“The most important thing at stake in this case was whether Congress had the Commerce Clause power to make everybody go into business with a private company, and there was not a majority for that. We’ve turned away the most dangerous claim,” said Georgetown University Law Professor Randy Barnett, who has been fighting against Commerce Clause expansion for years and was a leading intellectual light for the health law’s opponents.

Thursday’s decision amounted to a 4-1-4 ruling, with four liberal-leaning justices saying the law should be upheld on the Commerce Clause and taxing powers and four other justices saying it exceeds government limits no matter which power is cited.

That left the chief justice in the middle.

His controlling opinion tried to strike a careful balance, affirming Congress’s powers but denying them the limitless tool of the Commerce Clause.

At root, he said the government cannot force individuals to engage in commerce: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

But he said Congress’s decisions under the taxing power does apply — and said it doesn’t matter what politicians call it during the debate.

And he said the taxing power doesn’t have the same compulsion because it gives Americans a choice — perform an action or pay more money to the government.

“Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new,” he said.

“Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one,” he wrote.

In defaulting to the taxing power, the court rescued the Obama administration from itself — and in some cases the justices even reversed their own take on the law compared to March, when they held oral arguments.

“Here we have a case in which Congress determinedly said this is not a tax,” said Justice Elena Kagan, as she and the other justices prodded the government’s chief lawyer over the issue during the three days of arguments.

At another point Justice Ruth Bader Ginsburg also chimed in that she didn’t believe the government could rely on taxing power.

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