The Chief Justice of the United States
Just about everyone in Washington was wrong about what the Supreme Court would do yesterday on the Obamacare case. Well, we were sort of right but in the end we were wrong.
First of all the official title of the case is: NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
Who knew that? Put your hand down, you didn't know it until today, either.
I, along with everyone else, believed the Court would rule the Individual Mandate to be an Unconstitutional extension of the Commerce Clause.
In case you were absent that day from Dr. Robert Hill's Con Law class at Marietta College, Marietta, Ohio, 45750 -- the clause in question, which is Article I, Section 8, Clause 3, begins with the words, "The Congress shall have the power" and then follows with 18 things the Congress shall have the power to do.
The third power is: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The Court ruled by 5-4 that indeed the Individual Mandate was an Unconstitutional expansion of the "Commerce Clause."
But, as CNN and Fox News Channel discovered to their collective professional embarrassment, Chief Justice Roberts went on to say that the Mandate is legal if it is considered a tax because the very, very first power the framers granted to the Congress was the power "To lay and collect Taxes, Duties, Imposts and Excises …"
I know you are asking: "What in the world is an "impost?" so I looked it up for you.
According to Webster's Third Unabridged it is defined as: "Something imposed or levied" which sounds redundant to a tax but maybe the framers were being paid by the word.
So, when Chief Justice Roberts wrote that the individual mandate could be considered to be a tax, maybe he should have written it could be considered an Impost, but I don't think they'll throw out the 193 page opinion because of that.
On Monday, the Chief Justice had sided with the Majority to overturn almost all of the Arizona immigration law. There were those who wondered whether that decision was a foreshadowing of Roberts' opinion yesterday.
I guess it could be looked at that way, but I don't think the Chief Justice of the United States has much trouble separating the word "Arizona" from the term "Health Care" in his mind.
The four Justices who voted in the minority were clear, and to some degree harsh, in their dissent saying they would have repealed the entire law.
Roberts said in his opinion that the Court could not, and would not, rule on whether the policy of forcing people to buy health insurance was a good one, writing:
"We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions… Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
Unlike half the political pundits in Washington, Gov. Mitt Romney read the decision correctly and said, "Let's make clear that we understand what the Court did and did not do. What the Court did today was say that Obamacare does not violate the Constitution. What they did not do was say that Obamacare is good law or that it's good policy."
At his confirmation hearing in June 2005, Roberts said: "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules."
But it is a limited role. Nobody ever went to a ball game to see the umpire.
There were plenty of people outside the Supreme Court building yesterday to see the "umpires." At one point I tweeted (I'm @richgalen): "Is there any more useless activity than demonstrating outside the Supreme Court? Other than demonstrating at the base of a volcano, I mean."
I think the nation owes George W. Bush a national round of applause for nominating John Roberts to be Chief Justice of the United States. I don't know if former President Bush agreed with the ruling or not, but he had to admire the fact that Roberts told the truth, the whole truth and nothing but the truth at his confirmation hearing.
Pretty good stuff, that.
On the Secret Decoder Ring today: Links to the full opinion (which you can download, print, and put on your shelf next to your copy of the Starr Report), to all of the Enumerated Powers, to Romney's statement and to Roberts' statement at his confirmation hearing. Also a modestly amusing Mullfoto and a topic appropriate Catchy Caption of the Day.