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In July, 2012 the people of the United States were treated to the shock decision that came down from the Supreme Court regarding ObramaCare. The judgement of this site and others was that it was an abominable decision  Many pundits and bloggers have dissected the decision with Mark Levin probably doing the most thorough job. Up to now this site has not,. After reading through the decision and absorbing what it had to say there is no change in the original assessment, this decision was one of the Courts worst.  There are many significant problems with the decision, problems that go to the very core of our governmental system.  What follows is a reflection on arguably the three most egregious aspects of the decision and why it is such an enigma to those that thought Justice Roberts a conservative.

1. It Goes Against the Rule of Law

The Court as represented by Justice Roberts declared it is the responsibility of the Court to uphold if possible the mandates of congress, to defer to them if you will. To be exact Justice Roberts in the ruling called it a “general reticence to invalidate the acts of the nation’s elected leaders.” This is not only an affront to the system of checks and balances but to the very concept of Rule of Law.

The responsibility of the judicial system is to adjudicate not to advocate. There is a reason that lady justice is blindfolded, the judicial system is there to declare what is lawful and what is not, not to declare who before it is more worthy a litigant than another. This is never more true than when the case represented is between the majority and a minority. Whether among the people or their representatives rule by mob is abhorrent to justice. If a hundred declare the rights of the one void it is the Court that must be blind to whom or how many and defend the rights of the one. The fact is, when the Court moves beyond that mandate and attempts to favor one group over another it corrupts the system. Even more so when the group in question is the U.S. Congress!

2. It Declared Something Can be Two Things at Once

The Court, again represented by Justice Roberts, declared against all precedent and common sense that a source of revenue can be both a tax and a fine at the same time. It did this for the sole purpose of upholding the law and no other.

Since the inception of the Anti-Injunction Act it has been established law one can’t legally protest a tax before the Court until harm has been done, that is to say the tax has been implemented and paid.  So if the mandate is a tax than the case is without standing and the case should have been void.  The Court used what Jefferson called twistifications to get around this formidable barrier.

The majority opinion declared that ObamaCare was a tax for constitutional purposes, despite being called a penalty by the act, but it wasn’t for purposes of the Anti-Injunction Act because it is labeled a penalty by the IRS based on the act. If that has got you scratching your head you are not alone, many constitutional scholars have been doing the same thing. The result is the fine in the Patient Protection and Affordable Care Act was declared some type of new fairy tale animal that both is and isn’t a tax at the same time. Clever possibly, insanely bending over backwards definitely.Again, the case shows the Court was acting in the capacity of an advocate not as a court of justice. Ignoring precedent and common sense it declared something that never existed or even thought possible the law of the land.

3. The Court Acted Outside of its Constitutional Authority

Finally, the Court decision rewrote the law. The separation of powers is a wall of separation that is well defined in the constitution. Legislators write laws, judges do not. The Court has no constitutional authority to write or rewrite legislation, period. Despite this the court in writing its decision also rewrote the law, a power clearly beyond its mandate. Now the Court has in the past struck down laws and in its decision given the legislators hints as to how the same thing could be accomplished without being declared unconstitutional. This decision goes far beyond that, it in essence amended legislation which by law it cannot do! Congress can amend but only after a majority vote to do so; this was legislation by judicial fiat clear and simple.

The minority got this one spot on, unfortunately as in other badly misguided decisions the minority was ignored.

Justice Roberts before this ruling considered a strict constructionist, that illusion is forever broken. The fact is the justice that everyone said was the brightest man on the Supreme Court showed none of that in writing the majority opinion. What he did show was a smug indifference to the constitution and the Rule of Law.

There is little positive one can glean from the decision, as Fred Thompson wrote, there are no silver linings here. This case will go down in the history of freedom as one of the most egregious ones. If there are any consolation prizes to be dug out of this decision it is may have given the Republicans a route to a filibuster proof elimination of ObamaCare. That is because by declaring the fine a tax it makes it de-fundable through normal congressional procedures. One can also add the firing up of the conservative base.

The Conservative Mind

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