Government Wins Even ObamaCare Ruling's 'Silver Lining'
Some conservatives believe there's a silver lining in Chief Justice Roberts' opinion upholding ObamaCare because he pays lip service to limited government. Folks, the constitutional rule of law lost. To use a more appropriate metaphor, the only thing that looks silver is the shining metal of knives the government wields.
The unprecedented takeover of one-sixth of our economy and the greatest loss of individual liberty that the largest number of Americans have suffered in over a century is just the tip of the iceberg. Whatever rhetorical spin one can put on Roberts' opinion is more than offset by the practical, deep, transcending, and even hidden effects of the ObamaCare ruling.
It is risible that Barack Obama, Nancy Pelosi, Harry Reid, and their ilk will feel the least bit restrained by Roberts' civics lesson about limited federal government power. Obama must be laughing all the way to his next fundraiser with bankers.
John Roberts' nonsensical, activist opinion upholding ObamaCare is even worse than it appears. First he claims that the individual mandate is not a tax for purposes of the Anti-Injunction Act. Next, to uphold the individual mandate, he claims that it is a tax. Even tax-loving Democrats are denying Roberts' sole basis for upholding ObamaCare -- that it is a tax. How curious!
The ObamaCare decision will embolden Barack Obama and left-wing statists in their quest to rule America in disregard of the Constitution. Now they have reason to believe that nothing and nobody in government has the constitutional guts to stop them. They are lawbreakers whom the court just set free to go commit more lawbreaking.
Their lust to trample the Constitution has just been whetted. Lawsuits to defend our freedoms -- by those who can afford the millions of dollars to get through the court system -- add to Obama's strategic and twisted joy. Every dollar spent on lawsuits by victims and freedom-lovers is one less dollar spent to defeat Obama and his statist allies politically, while taxpayers foot Obama's legal bills for his unlawful acts.
Obama now has a clearer path to fundamentally transform America, and in far more areas than just taking over our health care. Statists can attack liberty at will, and courts are now free to justify it under the taxing authority. You can bet your last dollar that statists are already strategizing more of the same.
Obama, especially, never needed to be emboldened. Instead, he needed to be humbled and chastened. He has already assumed authorities of a dictator. The ink on the Supreme Court's Arizona immigration decision was not even dry when he issued an edict to punish that defiant state by revoking federal immigration enforcement there. What else will he now do to those who dare defy him?
The ObamaCare decision didn't just embolden Obama and other elected statists. Ask any constitutional conservative lawyer who has dealt with government lawyers or bureaucrats. When litigating challenges about government authority, government lawyers twist court decisions in ways to expand government power. Bureaucrats? They're worse.
Government lawyers assuredly have already honed in on one line from page 17 of Roberts' opinion: "[I]t is now well established that Congress has broad authority under the [Commerce] Clause."
Statist judges will facilitate more government power by citing that one line. They build on quotes taken out of context, and add government power that prior court decisions never intended. In The Law That Governs Government, we call this compounding:
Lawyers understand, perhaps better than most, that cases (and freedoms) are won and lost in the margins; that is to say, not by the notorious violations of law, but in the minutiae. The minutiae compounds itself in ways not or barely noticeable until it's too late.
Bureaucrats operate in world absent constitutional considerations. They see their jobs as enforcing the laws and regulations over which they have jurisdiction, and the Constitution be damned. They are entirely insulated from the threat of being voted out of office or from other negative consequences when they abuse their authority, which tends to make them arrogant about their power.
ObamaCare will embolden nearly all government bureaucrats, even those whose mission doesn't involve enforcing ObamaCare. Not only do bureaucrats ignore the Constitution, but they frequently violate the laws that they enforce. Their attitude when confronted with their own lawbreaking? So sue us.
They know that they are insulated even from court adjudication through the Byzantine Administrative Procedures Act, which requires challengers to exhaust "administrative remedies." Victims of bureaucratic lawbreaking must go through hearings conducted by administrative law judges not confirmed by the Senate, but chosen by the agency itself. The umpires wear the uniforms of the team being challenged.
And, if challengers do have the resources to get through that process and then seek relief from the courts, judges typically defer to an agency's own interpretation of the laws that it enforces. It's Kafkaesque.
ObamaCare adds more government bureaucrats who will act like TSA employees with regard to our personal privacy and who will show the all the charm of Department of Motor Vehicles workers.
In operation, it is meaningless that Roberts' opinion waxes on about limited and enumerated powers, state sovereignty, federalism, and other such doctrines important to constitutional conservatives. Besides, Roberts could have set forth the very same civics lesson on the limited power of the federal government, yet sided with the four justices who thought ObamaCare is unconstitutional.
The principal duty of any court is to adjudicate the matter before it. Opponents of ObamaCare lost the case. Period. There is no silver lining and no spin that can compensate for such a devastating defeat when one understands how government operates.
To paraphrase Justice Thomas in his dissenting opinion, the ObamaCare decision "has encouraged the Federal Government to persist in its view" of power that "has virtually no limits."