Roberts’ Commerce Clause silver lining: The Slope Done Slipped

Posted by on July 11, 2012 1:14 pm
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Categories: Patriot Dispatches

The taxing power is more overt, but how much commerce is left to regulate with Obamacare safely constitutional?

In the wake of the recent judgment of the nation’s highest court upholding the Affordable Care Act, conservatives were invited to wax optimistic since the Chief Justice joined the four conservative dissenters on the judgment in agreeing that the individual mandate to buy health insurance or be fined is not a constitutional exercise of the power of Congress to regulate interstate commerce.

Never mind that the Commerce Clause had never been used to regulate inactivity. Be happy that five justices of the United States Supreme Court had finally stopped traveling down the slippery slope of ever expanding “interpretations” of the power of the federal government to limit Liberty-based happiness pursuits via Article I, Section 8’s most-used clause to coerce behavior that Big Brother approves of.

DeVine Law has long been skeptical of most slippery slope arguments, and this one is no exception, especially when the man we are supposed to have faith in for a future fifth vote just approved the greatest expansion of federal power over our lives (and one-fifth of the economy to boot) in America history with a last-minute singular opinion running roughshod over decades’ of case law precedent distinguishing penalties from taxes, by citing the “taxing” power as justification and joining four liberal Commerce Clause adherents in the The Judgment.

Ah yes, The Judgment. The judgment of the court is what deciding cases and controversies is really all about, since “opinions” and justifications can much more easily be changed and accommodated, especially by a Chief Justice that cares most about what liberal journalists and “historians” think of him. We suspect that the Chief Justice of the United States, John Roberts did not want his court legacy to be defined by overturning a law passed by a super-majority in the Senate and signed by the first black President. Never mind that his legacy will now be littered by a made-up taxing power that not one other justice agreed with and a judgment upholding a massive expansion of federal power in which no majority agrees on why such a power grab is legal.

We agree with those conservative scholars who suggest that we ought not rely upon courts to save us from liberal legislation we don’t like, and we certainly do not favor result-oriented activism. But neither should we have to re-ratify the U.S. Constitution with Republican majorities in Congress and Republican Presidential signatures every time temporary Democratic majorities in office violate the supreme law of the land.

But here we sit, force fed a penalty or tax or whatever consequence for not buying a Blue Cross/Blue Shield health insurance policy surrounded by a law that forces those same companies to eschew actual insurance risk analysis and cover every applicant that applies even if they were just diagnosed with fatal diseases.

Artur Davis, former Alabama Democratic Congressman-turned Republican refuted George Will’s silver lining quest by echoing Rush Limbaugh and others grounded in the Obamacare as law present and how it alone poses a clear and present danger to the American exceptionalism we grew up amidst:

Let me slip in here for a moment, I’m not as confident, Terry, as you and George are on what John Roberts is going to do with any of these cases for a very simple reason. John Roberts exposed this week that he’s very attentive to elite public opinion in Washington, D.C. and the attentiveness to elite public opinion is going to pull him up on affirmative action the way it did Sandra Day O’Connor. It’s going to constrain him on the Voting Rights Act.
The reality is, we don’t know, and I guess but we should know because these guys and ladies are supposed to be reading opinions and listening to the arguments and being independents…
Conservatives have to put their confidence in grassroots and the public and in winning — Underscoring the point, conservatives are wrong to depend on courts. You’ve got to go to public opinion when the argument is on public opinion, which is happening by the way in 36 states on gay marriage and it’s happening by the way in the context of health care. The argument of public discourse is being won by conservatives.

If Obamacare is not repealed, and it won’t be absent the election of Mitt Romney as president along with a GOP majority in the U.S. Senate willing to endure accusations of non-caring venality against adult children and pre-existing conditioned patients, as alluded to by Limbaugh:

RUSH: Folks, look.  We lost a huge case in the Supreme Court.  There is no silver lining.  What now has to happen is we regroup.  We have to inform as many fellow citizens as possible what is in store for them, their freedom, their health care, their lives, the lives of their children or grandchildren, if this stands.  We have to stop deluding ourselves if we are to beat this back.  We can fight to repeal Obamacare, and we must, but we have to win the next election big.  We can’t tolerate any Republican capitulating in advance of this fight or accepting any aspect of Obama.
Folks, I’m sorry.  Realville.  It’s all gotta go.  This business of, “I like keeping my kid on my plan, preexisting conditions.” We’re not even talking about insurance if we’re going to give people with preexisting conditions insurance.  We can deal with those two things separately and in a much smaller way after we toss this whole thing.  We’ve got to toss the whole thing.  We don’t need 2,700 pages, Constitution-altering, life-altering changes to our freedom and liberty for those two small little things that could be fixed individually by themselves.  Same thing with the uninsured.  If Chief Justice Roberts had wanted to throw this back to Congress, you know what he woulda done?  He would have repealed it.  And then he would have said, “If you really want it, you go back and do it right,” if he had been paying attention to the Constitution.

It is hard to imagine what the Secretary of Human Services can’t decide we must or must not do as relates to health and the government’s interest as payor, much less  the need for a Commerce Clause justification for health care mandates. Obamacare is the law, period. If the Commerce Clause were scaled back by the court, all the government would need to do is couch their arguments for regulation of industry as health related. In other words, the slope of all-encompassing dictatorial government power…done slipped.

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Atlanta Law & Politics columnist –

Editor of  Hillbilly Politics and Co-Founder and Editor of Political Daily

Charlotte Observer and Atlanta Journal-Constitution op-eds archived at

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