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Law Professor on Obamacare: Chief Justice Done Good

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  • Legalbear
    The Chief Justice Done Good By Dov Fischer Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial
    Message 1 of 1 , Jul 5, 2012
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      The Chief Justice Done Good

      By Dov Fischer

      Chief Justice John Roberts has handed a remarkable victory to
      American conservatives by threading the judicial needle with
      perfect precision. The initial disappointment collectively felt
      by Americans who had hoped for a Supreme Court ruling that would
      overturn Obamacare soon will be replaced, upon further reflection,
      by the excitement that will come with a fuller appreciation of what
      the Chief Justice has wrought.

      First, almost completely unnoticed, the Chief Justice voted with
      his four conservative colleagues in drawing an unprecedented red
      line against Washington wielding the Constitution's Commerce Clause
      in the future to justify federal intrusion into the personal lives
      of Americans. This decision will restrict American Presidents and
      future Congresses for a generation and more.

      Until Thursday's decision, for more than 70 years, virtually
      every leading Supreme Court decision on the reach of the Commerce
      Clause has sided with federal intrusion. Although there have been
      isolated exceptions -- e.g., United States v. Lopez, 514 U.S. 549
      (1995) (limiting federal regulation regarding carrying guns near
      schools) and United States v. Morrison, 529 U.S. 598 (2000)
      (limiting power of the federal government to expand rights of
      women to sue attackers) --the leading cases on the Commerce Clause,
      often relying on precedents like Wickard v. Filburn, 317 U.S. 111
      (1942) (holding that Congress could prevent a person from growing
      wheat for his own personal consumption on his own private land),
      have held that the federal government can force Americans to do
      or not do, to buy or not buy, virtually anything if couched as an
      act to facilitate or regulate interstate commerce. Wickard "always
      has been regarded as the ne plus ultra of expansive Commerce Clause
      jurisprudence." (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting,
      at 3.)

      It was this very line of Wickard-consistent Supreme Court opinions
      that served as the basis for a long line of lower federal courts,
      both district courts and federal appeals courts, choosing to uphold
      ObamaCare as that bill was tested through the judiciary. However,
      with Chief Justice Roberts almost surreptitiously joining with
      Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare
      is barred by the federal Commerce Clause, a new era has begun in
      Commerce Clause jurisprudence.

      Every liberal citation to Wickard will be countered by a conservative
      citing to Chief Justice Roberts's opinion: "If no enumerated power
      authorizes Congress to pass a certain law, that law may not be
      enacted, even if it would not violate any of the express prohibitions
      in the Bill of Rights or elsewhere in the Constitution. . . . The
      Court today holds that our Constitution protects us from federal
      regulation under the Commerce Clause so long as we abstain from
      the regulated activity. The Federal Government does not have the
      power to order people to buy health insurance. . . . The Federal
      Government does have the power to impose a tax on those without
      health insurance." (National Federation of Independent Business
      v. Sebelius, Slip op. at 3, 41-42, 44)

      Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County.  He blogs at rabbidov.com.

      Read more: http://www.americanthinker.com/2012/06/the_chief_justice_done_good.html#ixzz1zlGlXRrw


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