Chief Justice John Roberts rewrote the specific language of Congress by claiming in his ObamaCare ruling that the penalty that the lawmakers had clearly attached to the individual mandate was actually a tax. It was the only way in which the Affordable Care Act could be saved; for the Court rejected the Commerce and Necessary and Proper clause defenses as constitutional grounds for the existence of the law.
By “penciling in” the tax language necessary to satisfy his own requirement of constitutionality, Roberts behaved no differently from any liberal, activist judge so often criticized by conservatives for judicial malfeasance; that is, he cheated rather than rule against a personally favored piece of legislation.
The question is WHY? WHY did the Chief Justice defraud the Court and the American public rather than rule ObamaCare unconstitutional?
In the majority opinion, Roberts wrote: “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A (the individual mandate) is therefore constitutional, because it can reasonably be read as a tax.”
No, Mr. Chief Justice. Section 5000A may be reasonably re-written BY CONGRESS as a tax, but it may not be READ that way because that is NOT the way in which Congress WROTE it! A great many laws may be reasonably re-written into something they are not, thus bringing them into line with the personal views of justice, propriety, or constitutionality held by the judge preforming the artful edit. But that is not the proper role of a Supreme Court Justice.
As Justice Scalia writes in his dissent, “…Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of the statute…or judicially rewriting it.” In short, the Supreme Court must not “… rewrite [a] statute to be what it is not.”
So why did the Chief Justice do just that? Was it because:
1.) Roberts is so adamant about going down in history that he is willing to do it by making a ruling devastating to the liberty of the American people?
2.) Roberts is in reality a conservative activist? Knowing a majority of Americans favor the end of ObamaCare and its creators, he believed his ruling would rouse conservatives across the nation to the defeat of Obama and repeal of the law?
3.) Roberts actually believed what he did to be right and proper?
Chief Justice Roberts cunningly transformed the ObamaCare individual mandate penalty into a tax and then chose to ignore the necessity of defining the type of tax he had created. After all, giving a name to the tax would have required Roberts to show that Congress had the constitutional authority to impose and collect it!
Exactly why he did all of this, we may never know. If by reason of arrogance or misdirected activism, it would be alarming. If because he actually thought it right, it would be terrifying. After all, this man might be the chief justice for another 3 decades!
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Photo Credit: McConnell Center (Creative Commons)
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