Through accident or design Chief Justice John Roberts and Associate Justice Anthony Kennedy have done the American people a great service. While the two American political parties become more partisan, the Roberts and Kennedy opinions rendered on the constitutionality of the Affordable Care Act have drawn a bright line between what seem to be two opposing visions for America's future. It is no small thing that Kennedy, the so-called "swing vote" felt the Act such an abomination that in his dissent joined by the three conservative justices, he called for striking the entire law down as an egregious overreach by the federal government. Chief Justice Roberts, on the other hand, upheld the law on the basis of the argument that although the Congress and the president specifically said that the mandate funding the legislation was not a tax, it could be "construed" as one. Roberts pointedly said that this was not an opinion on the quality or advisability of the law merely on the taxing authority of Congress (even when they don't intend to pass a tax).
That the law was passed on a purely partisan vote, that few who voted for it read it or were fully briefed on the contents of its 2,700 pages, that its first 10 years of operation are now projected to cost nearly $3 trillion, twice their initial estimate, and that it is now evident that many employers will opt to pay the penalty and cancel their existing health plans leaving millions of Americans unable to continue their present coverage as advertized -- none of these are constitutional issues. Congress does not have to read or understand what it passes and advocates are free to distort financial projections and demagogue, even in the words of Abraham Lincoln "to fool some of the people some of the time and all of the people some of the time." This is American government at the dawn of the 21st century. It's all perfectly constitutional.
Now, also in keeping with our constitution, on Nov. 6, 2012, the American people will have their say. They will go to the polls and decide whether to support the president and the party that single-handedly drafted, passed, and defended this "big __ing deal" in the words of Vice President Joe Biden or replace them with presidential and congressional candidates sworn to repeal it. They will decide if they want to continue the transformational direction advocated by this president, perhaps enact the promised cap and trade legislation that would in the president's words massively increase the cost of energy, pass card check to increase unionization of the private sector, expand the welfare state maybe extending unemployment compensation beyond the already extended two years, and cede to the executive the unilateral right to enforce constitutionally passed laws at his discretion.
Contrary to what many would have us believe, the next election is not about race, religion, who we would want to have a beer with, gay marriage, abortion, or God forbid, "fairness." It is about the future role of the federal government and the role of the individual in America. Chief Justice Roberts ruled that a tax is a tax even when it's not supposed to be a tax. The American people may now proceed to render a more consequential judgment.
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