In the wake of the Supreme Court ruling on the Affordable Care Act, I have noticed a curious phenomenon in which some conservative commentators seem to be so desperate to find a silver lining to the ruling that they have abandoned all logic. Consider George Will, who wrote a column in the aftermath of the ruling that actually puts forward the argument that we conservatives should take the fact that Roberts didn’t rely upon the commerce clause as evidence that there might be some constitutional limitation on the federal government after all. That would be a wonderful aspect of this ruling, if they had overturned the law! Instead, what we have is a monstrous precedent set in which the court re-writes a law in order to make it constitutional by imputing into the act a tax that had not existed in fact. This is an unmitigated disaster. I have heard a few who have noted hopefully that this ruling will energize the conservative base, and while that’s probably the case, I’m not certain I am so concerned about the political fall-out as I am about the long-run constitutional implications. You see, the political situation may permit us to repair the law, but it doesn’t permit us to immediately repair the damage done to the body of case law upon which future courts will rely as precedents in their own rulings.
The other thing I have read is the bizarre notion put forward by the National Review that what Roberts did was more conservative because he exercised judicial restraint in not striking down the law. Balderdash! Once you realize the legal contortions through which Roberts arrived at this ruling, it makes no sense whatever to claim he hadn’t acted as an activist. The convoluted logic by which he found a tax in a law that plainly states it does not contain one is an onerous breech of any notion of strict construction. I cannot conceive of any intellectually rigorous examination of this ruling by which this can be seen as a positive by anybody who is in favor of strict construction. When it came to the Anti-Injunction section of the ruling, it was held not to have been a tax, but just a few pages later, as Roberts performed mental gymnastics, he declared it was a tax after all.
On Thursday evening, Mark Levin summarized the matter better than anybody I’ve heard speak to this matter, in part because he understands the legalities in question, his Landmark Legal Foundation having been a participant in this case, but also because he knew Justice Roberts years ago when they both worked in the Reagan administration. Levin’s critique of the decision mirrors most of my own, and indeed, there was one aspect I hadn’t considered until Levin led me to it. That premise led me to yet another that I don’t believe Levin has yet realized in full. What one must understand is that this ruling is an unmitigated disaster, and no search for some alleged silver lining can repair it.
What justice Roberets actually did was to expand the definition of what constitutes a permissible tax . Congress is permitted to levy only certain forms of tax, and this one doesn’t fit the definition of any of them. In dispensing with that issue, Roberts held that it didn’t matter, and that words don’t matter, and that plain-written legislative language doesn’t matter. He also ignored the context of the law, and the intent of Congress. One version of this bill had an actual tax, but Congress could not pass it in that form, so Congress altered it to contain no tax. What John Roberts did was to ignore the actual text of the legislation, and to say that the labels didn’t matter: If it looks like a tax, it is one. The problem with this is that it does nothing to restrain Congress from levying new taxes, and ignores the definitions of what sort of taxes Congress may enact. This is a wholesale extension of Congressional taxing authority because what Roberts ruled with respect to the particular form of the tax, insofar as the question of whether Congress had met the constitutional limits on whether it could impose it was effectively: “Close enough.”
That is offered to us as evidence of John Roberts’ alleged strict construction? Close enough? What this means, effectively, is that if Congress enacts some tax that it has questionable constitutional authority to levy, smiling John will be there to tell us it’s “close enough,” with every leftist monster on the court standing behind him to uphold it.
Ladies and gentlemen, there exists no silver lining to this ruling. All of the crackpot, delusional happy-talk from some conservatives in media is designed to make you feel better. You’ve just lost both arms and legs in a brutal assault, but they tell you, you should consider this a happy opportunity to enjoy the comforts of a new wheelchair and mouth-controlled joystick. You’ve just lost your family to a violent home-invasion, but, they tell you, you should view this as a chance to start over. The intention here is to keep you calm. The intention now is to serve a political end, while your country is dying around you. Your most sacred law, the US Constitution, has been crumpled and tossed into the ash-bin of history, and you are told you should do a happy-dance to the calming sounds of “Oh Happy Days.”
I’d like you to inventory the whole of the conservatives to whom you listen, or whose columns and opinions you read, and I want you to take care to note which of them are imploring you to consider some silver lining. They are lying. They have good intentions, many of them, and they have contorted themselves into a formless spaghetti of reasoning in order to find some good in this awful plate of refuse you’ve been handed. Don’t surrender your minds by sprinkling Parmesan on it and wolfing it down. Are there some limited political opportunities as a result of this decision? Yes, but they require the fulfillment of a whole laundry-list of “if-then” statements.
IF Mitt Romney is elected, and IF he doesn’t sell us out, and IF we hold the House, and IF we recapture the Senate(and at least 60 votes) and IF the moderates in either house don’t screw us, and IF Boehner and McConnell have the guts to do in repealing what the villains Reid and Pelosi did in passing the ACA, and IF they can deliver a bill to President Romney’s desk, and IF John Roberts and the other liberals on the court can be replaced, and IF Mitt Romney can replace them with actual strict constructionists, THEN you might have a chance to undo this damage. IF any of these don’t happen, your constitution is effectively dead as a restraint on government.
The danger of self-imposed delusions is that you come to believe them, like a pathological liar. It is by this form of self-delusion that we’ve permitted our country to lose its roots in reverence for the Constitution. We cannot defeat the statists by pretending this isn’t the disaster that it is, if we can defeat them at all. I believe some talking heads know this, but do not want to yield to what will come in the wake of such a monstrosity. They’re hanging on, stubbornly telling us that the stench of smoke reaching our nostrils is merely an air freshener of a novel scent. Rather than screaming “Fire,” and warning conservative Americans that the house is ablaze, the barn is wiped out, the surviving farm animals running loose in a frantic bid to stay ahead of the flames licking at their heels, many are now telling you that it’s all okay. It will be fine.
No, it won’t.