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‘Constitutional’ and ‘unconstitutional’ — Roberts’ tortured reasoning preserves ObamaCare

Pedestrians downtown Chicago watch  President Barack Obamspeak giant monitor Thursday after Supreme Court's decisiupholdijng vast majority his health care

Pedestrians in downtown Chicago watch President Barack Obama speak on a giant monitor Thursday after the Supreme Court's decision upholdijng the vast majority of his health care overhaul. (AP Photo/Sitthixay Ditthavong)

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Updated: July 30, 2012 6:22AM

Thursday morning before the Supreme Court rendered its historic decision, a top Sun-Times editor asked me if I thought it would overturn the ObamaCare mandate requiring every American to buy health insurance. “I think the court will bend over backward to avoid declaring an act of Congress unconstitutional,” I replied.

That’s exactly what happened, and “bend over backward” may be an understatement for the complex, tortured reasoning Chief Justice John Roberts used in explaining the 5-4 decision that declared, “The Affordable Care Act is constitutional in part and unconstitutional in part.” The “unconstitutional in part” may have preserved the integrity of the Constitution — its Commerce Clause can’t be used to compel Americans to buy a product — but the “constitutional in part” ruling saved the signature legislative achievement of President Barack Obama.

In doing so, complained the four dissenting conservative justices, Roberts and the four liberal justices decided “to save a statute Congress did not write.” The law requires every American to have health insurance or pay a penalty. Roberts said this penalty — which he acknowledged would be unconstitutional enforcement of the individual mandate — is actually a tax, and that Congress could levy it on people who did not buy health insurance.

But the history of the act argued against that position. Congress, as the dissenting opinion read by Justice Anthony Kennedy noted, used the word “penalty” 18 times in the law regarding the mandate. What’s more, as the act was being debated in Congress, Obama in a nationally televised interview repeatedly declared it would not impose a “tax increase” on Americans.

The administration reversed course and adopted the tax argument when it became clear the mandate faced a serious constitutional challenge. But that was after the fact of the debate on and enactment of the law. As Kennedy put it, “[T]o say that the individual mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Roberts defended his ruling by citing precedent requiring that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Such a deference to Congress reflects
Roberts’ respect for the separation of powers, though Kennedy argued rewriting the law constitutes “a vast judicial overreaching.”

You have to wonder if Roberts feared a campaign of demonization against the court from the White House and Democrats if ObamaCare had been struck down. Obama has attacked the court on more than one occasion, displaying a disrespect for the separation of powers to which the chief justice gave such deference.

Roberts rightly said the court couldn’t rule on the wisdom of health-care policy:
“It is not our job to protect the people
from the consequences of their political choices.”

Still, it’s worth noting that Obama and Democrats passed the law without any significant Republican ideas and shoved it through Congress on a strictly partisan vote — nothing like the bipartisan consensus reached in passing other major entitlements in the past. That, combined with its compulsory elements, its intrusion into family life and its projected high costs, is why polls have consistently shown ObamaCare to be unpopular with the American public and why the voters will render the final judgment on it — and Obama — in November.

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