Chief Justice John Roberts Splits the Baby


sliide to the left

Among the many stories in the Old Testament of judges and kings (often dual office-holders of sorts) is that of King Solomon's decision to cut a baby in half to determine who the true mother was. Chief Justice John Roberts channeled his inner King Solomon, of sorts, in penning the majority opinion in yesterday's ObamaCare decision. The chief justice rejected the constitutional basis by which the legislation passed the Congress, that it was an exercise of their commercial regulatory powers, and instead ruled that what Congress was doing was exercising its taxing power (whether or not it wanted o own up to that), which it could. He made a point to declare that "[i]t is not our job to protect the people from the consequences of their political choices," and that the ruling was not on the wisdom of the legislation, just its constitutionality. Had ObamaCare been presented in Congress as a tax, of course, it would probably have never passed. Democrats consistently denied it was a tax, and Obamacare just barely passed anyway. But those who cared still to legitimize legislation with the Constitution pointed to the Commerce Clause as justification—the Court, for the first time in 75 years, declined to expand Congress' commercial regulatory power, instead exercising "judicial restraint".

We live in a country whose federal regulatory code grows by the minute and whose federal government legislates and regulates a wide array of human activity. In placing ObamaCare within the realm of the government's power of taxation, the chief justice opens the constitutional door to all kinds of behavioral modification taxes down the line. Could the Congress set the tax rate to 100% and then offer rebates for purchasing the "correct" products and making the "correct" lifestyle choices to work that rate down to something more reasonable? The chief justice has said, essentially, not to look to the Court to stop the Congress from stupid politics. That's "restraint." So we're stuck with the Congress the country keeps electing and empowering. Do you want that baby?

Complete Reason coverage of ObamaCare.