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    Stop the self-delusion

    Stop the self-delusion

    Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power.

    To paraphrase Joe Biden, I have just four words for you:

    BIG —— DEAL

    If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….

    I might be inclined to agree with you.

    But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.

    This was the hill to fight on for any conservative Justice of the Supreme Court.

    Yet because the conservative Chief Justice sided with the liberal Justices on the result, we have Obamacare.

    Whether the Chief Justice did it out of good faith belief in the correctness of his opinion (which is what I believe) or as part of some master plan (the theory some are peddling), the result is the same:  Until further notice Obamacare is the law of the land.

    Sure, we now are motivated for November.  And maybe in the end we will get rid of Obamacare.

    But that is then and this is now.  And under any reasonable theory of conservative judicial restraint, the Chief Justice should have allowed Obamacare to fall of its own weight, of a weight born of a political process in which the mandate could not be called a tax because the nation would not have stood for it.

    This is now, and today we should have been rid of this monstrosity.

    We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.

    So please don’t delude yourselves.  Today was a bitter loss because it was one we should have won.

    Related: Supreme judicial activism in restraint’s clothing and How right I was: “IRS The New Health Care Enforcer”


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    celestechristi | June 30, 2012 at 9:46 pm

    The only thing standing between America and a Dictatorship is The Roberts Court. We have 3 branches of government. Obama has neutered Congress, and has been attacking the court since his first State of the Union. His intent is clear. Destroying 2 of the 3 branches leaves only the Executive Branch standing.

    The court maintains authority only so long as the country perceives it as legitimate. Roberts ruling gives the power to keep or strike Obamacare to the people while maintaining the integrity of the court, strengthening the 10th Amendment, limiting Federal Power, removing the teeth of the law, and, by accurately identifying it as a tax, providing clear procedures for repeal. Brilliant.

    If America doesn’t want Obamacare we must get rid of Obama. What the Chief Justice gave us was the ability to use free will. There’s nothing more Constitutional than that.

    […] limit on the commerce clause (infinitely weaker than the founders intended), but I’m with Professor Jacobsen: anyone who thinks that adding an unlimited federal power to tax for the general welfare to the […]

    […] sorry, misguided folks trying to gin up some hope for themselves out there, I’ll let the Prof dispense with that: If this were some other more narrow law, if this was not a monumental takeover of the most private […]

    […] But even if he won, we argued well before last week’s Supreme Court ruling, Obama would lose because the opposition would be even more energized against the hated health scam racket on behalf of Big Insurance and Big Pharma. Now a ruling has come down that provides endless riches to opponents of Obama’s health scam, particularly Republicans/conservatives, but you would not know it from the howls from the right. […]

    […] I among the self-deluded?. Perhaps. I’ve never said I can’t be wrong. In fact, I’m often […]

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