- The Washington Times - Wednesday, July 4, 2012


I have a headache. I imagine you do too, if you have been trying to interpret the legalese employed by those sages who have pronounced on Thursday’s Supreme Court decision on Obamacare. I would rather read the lyrics of a thousand rap composers than the anfractuous language of one legal sage.

Thanks, however, to professor E. Donald Elliott of the Yale Law School, I had a translator at my side, and I shall now hand down my judgment of the court’s decision on Obamacare, which all sensible Americans have abstained from reading in its entirety, including Barack Obama, Nancy Pelosi and the vast majority of the denizens of Capitol Hill. Some of these worthies even acknowledged as much. It fell to nine heroic souls garbed in black to actually read the law and to Chief Justice John G. Roberts Jr. to write the decision for the exhausted majority.

As a result of his prestidigitation with prior precedents and with the famously vague English language, critics cannot dismiss Justice Roberts as hyperpartisan. His fellow conservatives are highly agitated by his decision. His usual opponents, the liberals, celebrate him. The chief justice dodged the bullet. I think you can call him crafty, as Chief Justice John Marshall was crafty all those years ago when he wrote the decision for Marbury v. Madison. Justice Roberts‘ decision, the decision of the majority of the court, accomplished three things:

First, he reiterated two earlier holdings of the court that ended the expansion of the Commerce Clause. The expansion of the federal government’s reach under the Commerce Clause is no longer a grave threat to limited government. This offends certain liberals, such as our friends at the New York Times. Well, you win some and lose some, indignados.

Secondly, for the first time since the New Deal, the court rejected a law for exceeding the spending power of Congress. The court invalidated the part of Obamacare that gave the federal government the power to coerce state governments to spend money on Medicaid.

Thirdly, the Congress can now tax us for not doing something, but this power is not nearly so dangerous as the power that the court limited, namely, the commerce power. Laws passed under Congress’ power to tax and spend may only take our money. Our recourse against this tax is the same recourse we have been employing since 2009, to wit, mobilizing and going to the polls. In 2010 it led to a historic sweep at the state and federal level. In 2012 the sweep will continue, landing Mitt Romney in the White House, where he says he will make repealing and replacing Obamacare his pre-eminent priority. He can also refuse to enforce the tax by executive order. The next Congress can repeal it using reconciliation to avoid a Senate filibuster, if necessary.

All things considered, we conservatives did not come out so badly, which should demonstrate once again how dangerous Obamacare is. Prior to Justice Roberts‘ juggling act, the conservative majority on the court was going to bounce Obamacare and the liberals could continue their noble work of deauthorizing an entire branch of the federal government - the courts. They could smear the Supreme Court as but another locale where crass conservatives play politics. You know how the otherworldly liberals disdain mere politics. Now Justice Roberts has responded to the better angels of his nature, and the liberals are applauding. As I have said, liberalism is dead.

Justice Roberts may be another conservative figure of historic dimensions as was Marshall. In 1803, Marshall was confronted by the outgoing Federalists’ appointment of the “Midnight Judges,” last-minute appointees to the federal bench. When one of those appointees, William Marbury, did not get his commission, he took it to the Supreme Court under the Judiciary Act of 1789. There sat Marshall, a Federalist and a believer in a strong federal government. He took the long view. He too, like Justice Roberts, was crafty. He ruled that Marbury was entitled to his judgeship, but the Constitution did not give him the authority to raise Marbury to the court. The provision of the Judiciary Act, by which Marbury claimed his commission, was unconstitutional.

Marshall thereby established the principle of judicial review. This time around, might Justice Roberts have curtailed the pernicious Commerce Clause and pared back the federal government’s ability to coerce the states? Might he have returned Obamacare to another round of democratic process? History continues to be filled with surprises. We shall await its judgment.

R. Emmett Tyrrell Jr. is founder and editor in chief of the American Spectator and an adjunct scholar at the Hudson Institute. He is the author most recently of “The Death of Liberalism” (Thomas Nelson, 2012).

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