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The Constitution, Court, and Fourth of July

It seems safe to say that no Supreme Court decision has ever been extolled more effusively by its admirers than the ObamaCare one, notwithstanding the fact that it was — in the words of the admirers — based on an unpersuasive argument whose coherence is easy to question.

Jeffrey Toobin at The New Yorker described Chief Justice Roberts upholding ObamaCare under the “tax” argument as a “singular act of courage” — although Toobin admitted, “[f]rankly, that argument is not a persuasive one.” Jeffrey Rosen at The New Republic described the chief justice’s action as an admirable legal “twistification,” comparable to those of Chief Justice John Marshall — even though it “would be easy, of course, to question the coherence of the combination of legal arguments that Roberts embraced.” Unpersuasive, incoherent, but what an act of courage!

On the right, those defending the chief justice praise him for meeting the possible challenge to the Court’s legitimacy from a contentious 5-4 vote, for his skill in making ObamaCare the issue in the coming election rather than the Court, and for giving the people the chance to determine the ultimate fate of that legislation, rather than having it decided for them by a 5-4 vote. Then he joined in deciding the constitutionality of ObamaCare by a 5-4 vote. He apparently switched his vote to endorse the “tax” argument he had demolished at oral argument.

Something is wrong with that picture; perhaps it will be redrawn in November. The New York Sun, in a beautifully-written editorial, describes the Roberts opinion as unconvincing — “to put it mildly” — and suggests that holding the mandate (1) a “penalty” rather than a “tax” under the Anti-Injunction Act, but (2) a “tax” rather than a “penalty” under the Constitution, “will strike most people as a lawyer’s self-parody.” The Sun ends, however, on an optimistic note:

[W]e’re for bowing to the Court and throwing oneself into the political fray. The Court’s ruling sets up Governor Romney to remind us again that the taxing power is the most dangerous of the powers handed to the Congress. And that when the Democrats get a hold of the Congress, they will use it in every way they can — even in requiring an innocent, law-abiding citizen who is beyond the reach of the Commerce Clause to purchase health insurance. It is a moment to remember that if the Obamacare mandate is a tax, then it is something that can be cut or repealed, as thousands of other taxes have been in the history of our country, almost always to beneficial effect. That is, after all, the bedrock on which our entire revolution began.

As we head into the Fourth of July, that may be the proper approach to the constitutional situation in which we find ourselves — thankful for the Constitution, for the continuing discussions about it, and for the opportunity for the people to render their own judgment in about four months.



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