Thursday, June 28, 2012

Judge Robert's brilliance

I just read an explanation of Robert's move, and I am even more impressed.  My first thought is that it is very good news that he did not legislate from the bench.  But, even better is how he did it.

Those arguing for the constitutionality of Obamacare argued that it was allowed under the Commerce Clause.  But, if Congress can force people to buy something, that is not a good thing.  That is too much power for Congress to have.  So, the argument against Obamacare, when looking at it from the point of view of the commerce clause, was very persuasive. As argued by Randy Barnett, a strong voice against the law:

"The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers"

But Roberts changed the argument.  He allowed the constitutionality of Obamacare and, at the same time, limited the reach of the commerce clause. He said, in effect: "Mandate? What mandate to buy insurance? There's no mandate, anyone can refuse to buy insurance, they will just have to pay a fine, which is nothing more than a tax.  Same as a tax on cigarettes to discourage smoking, this is a tax to fund Obamacare, not a mandate to purchase insurance."  

So, the law stands -which makes liberals happy, but the commerce clause is restricted and cannot include a mandate from Congress to buy something - which should make conservatives happy, if they pause long enough to think about it. In other words, Congress is not allowed to force us to buy broccoli.

The best lawyer in the room changed the basis of the argument and achieved two results: he limited the power of Congress in their use of the Commerce Clause to force people to engage in economic activity, and he restrained the power of the Supreme Court keeping it from legislating from the bench.