Gobsmacked!
That’s how I felt when I heard the news about the Supreme Court ruling on Obamacare. It’s not that I believed the law would be found constitutional - I gave up trying to predict the high court a long 
time ago.
And it wasn’t even that Chief Justice Roberts, not Justice Kennedy, was the swing vote. Grace-Marie Turner, president of the Galen Institute, health care policy expert and frequent guest on my radio show had warned us more than once not to be surprised if this happened.
The part that gobsmacked me, and basically everyone else, was the method that Roberts used in order to find a way to render Obamacare constitutional, which was nothing short of contrived (I promise, I’m using this word as the best way to describe his decision, not to be pejorative). Writing for the majority, Roberts divined that the individual mandate, the financial linchpin of the law and the most controversial element, is a tax. And since the Constitution gives Congress the power to tax citizens, the mandate is constitutional.
All of this would be well and good, except that for three years, the namesake of Obamacare and all of its other proponents vociferously argued that the individual mandate is a penalty, and absolutely NOT a tax. In fact, the high court ruling actually included that Congress does not have the right to expand 
the interpretation of the Commerce Clause (Article I, Section 8, Clause 3, of the U.S. Constitution) to include penalizing a citizen for not buying a product or service. (And that’s good news as a precedent for the future.)
So, based on that decision, Obamacare would not be constitutional if it were considered as written, passed by Congress and signed by the President. But since Justice Roberts - and the four so-called, “liberal” judges making up the majority - transmogrified the penalty in front of them into a tax, that allowed Obamacare to be rendered constitutional.
Some say Roberts made his decision to prevent his court from being perceived as partisan, the way the Rehnquist court was after the 2000 Bush v Gore decision. Some say - and a part of his written opinion actually intimates this - that Roberts felt the future of Obamacare should ultimately rest in the hands of the electorate, which he knew would be possible in barely more than four months.
By voting with the liberal wing of the court, Chief Justice Roberts declared his independence and demonstrated intellectual honesty; both are traits I admire very much. But, alas, I fear the contrived method he used - turning a penalty into a tax - to produce this particular ruling may go down in history as not the finest hour of this chief justice.
Finally, here’s a political observation: The Roberts’ ruling on Obamacare was a gift to Republicans, but not the way many pundits are saying. I think it will result in longer coattails for Mitt Romney on November 6 with the down-ballot candidates, like the House and Senate, to a degree that he would not have been able to achieve on his own.
We continue to live the Chinese curse: “May you live in interesting times.”
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Since last week’s Supreme Court ruling on the Patient Protection and Affordable Care Act, I have talked with several experts on my radio program, including Michael Reagan, Barbara Weltman, Grace-Marie Turner and Rich Galen, on what will happen now - from the potential costs and implementation of the bill to the politics and possibility of repeal. Click here to see the list of guests and listen or download any of our conversations.
Check out more great SBA content HERE!
