Jul

1

I respectfully disagree with Rocky and Stefan (happily without fear of counter-argument, since each has said it is his last post on the ACA decision and thus will not be able to respond).

If it was Roberts' attempt to throw a false gift to the liberals by upholding the ACA, while at the same time establishing the principle that the individual mandate violates the Commerce Clause, he did a pretty incompetent job of it.

Because his tax justification of the ACA has provided a new road map to Congress, broader than the Commerce Clause, under which roadmap virtually any infringement of our liberties can be upheld.

If the President and Congress wish to require each of us to purchase an electric car, simply pass a law that each person must purchase an electric car or pay a tax of $5,000.

If the President and Congress wish to require each of us to eat certain low fat or locavore foods, simple pass a law that each person must purchase such foods or pay a tax of $2,000.

I will forego the broccoli example and countless others, but they are obvious.

In the words of Richard Epstein, a favorite law professor of a number on this list, Roberts was "too clever by half":

"On the crucial issue of the individual mandate and the taxing power, Roberts sounds like a lawyer who is too clever by half. The point here is ironic, for without question, the Chief Justice came to his decision by self-consciously marching to the beat of two drummers: judge and statesman… The entire edifice that underlies the ACA on this critical mandate rests on a constitutional house of cards. If the legislation fails under the Commerce Clause, there is no reason to resurrect it by engaging in extravagant machinations with the words "tax" and "penalty." No umpire would accept such a shaky result. No statesman should either."

And in his half-baked approach, he squandered a once-in-a-generation opportunity to strike a blow for the Constitution, limited government, and individual liberty.


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