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ROBB AUSTIN'S TURN

Roberts Disappoints

June 29, 2012

Supreme Court Justice John Roberts disappointed many people this week with his opinion that President Barack Obama’s national health care proposal (Obamacare) represented some kind of “tax.”

Far from it – there is no such thing as a “tax” in the President's proposal. There is a financial “penalty” for anyone who does adhere to the mandate to purchase health care – but taxes are levied on people for services rendered – not as “punishment” if someone doesn’t do what the government says.

People are slow to criticize Roberts. He has long had a reputation on the court of being both an intellect and a scholar. He proved with this illogical opinion that he is neither.

I could go on and on about the mistake in judicial judgment - but others more qualified than I will be doing that for days and weeks to come.

What’s disappointing about Judge Roberts is the leap and convoluted roadmap he had to take to reach his decision in deciding constitutionality of the health care proposal.

At issue was whether the Commerce Clause of the United States Constitution (a clause that provides Congress with the authority to regulate interstate commerce) could also be used to compel citizens to buy health insurance.

It is the Commerce Clause that has long been argued by the Obama administration as the lynchpin that enabled government to mandate citizens to buy health care, as is the case in Obamacare.

It doesn’t take a Rhodes Scholar (or Supreme Court Justice) to know that the Commerce Clause is not a logical or realistic power within the U.S. Constitution to compel citizens to purchase whatever the government thinks you should.

So, as the Supreme Court argument unfolded, and the seven Justices began deliberations as to the constitutionality of Obamacare, the Commerce Clause wasn’t passing muster.

Here's where things got tricky. Justice Roberts, in his supreme wisdom (we don’t know the reason for the leap he made) decided that if the “penalty clause” for non-compliance in Obamacare was “a tax” and not "a penalty," then Obamacare would be constitutional.

After all, Roberts' theorized, the United States Congress has the authority to "tax."

Just following this line of reasoning in a written document such as this is complex. Yet, that’s the stretch Roberts had to make in his own mind to come up with the opinion he did.

He had to ask and answer a question that was never part of the debate in Congress, "is the penalty a tax?" Throughout the lengthy debate both the President as well as the authors of the bill insisted it was not a tax. Case closed on legislative intent.

As a former legislator, I can tell you what Roberts did. He re-wrote the law, and Congress' original intent of the bill. Only by calling the penalty "a tax" could Obamacare be deemed constitutional.

There was no 'silver lining' in Roberts' decision - instead he gave the Supreme Court a black eye. The four Supreme Court Justices on the losing side of the argument ridiculed him for rearranging the facts.

Theories are abound as to why Justice Roberts arrived at this decision, but no one is suggesting he did so out of judicial scholar or integrity. Instead, he came across as an activist judge, and someone who wanted to re-write the law for the purpose of social engineering.

During his confirmation hearing before the United States Senate, Justice Roberts likened himself to an umpire in a baseball game. He would be someone who calls “balls and strikes” from the sidelines, rendering decisions based on the facts as they are presented.

This is not what Justice Roberts did in this case. Rather than call things as they are, he twisted, turned, and convoluted to actively re-write things to nicely fit an opinion that appears to be pre-determined.

A frightening reality are the rulings yet to come from a now tainted Roberts’ Court.

We will need to hold our breath while awaiting future Supreme Court decisions.