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Frank A. Weil

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Chief Justice Roberts Is Devilishly Clever

Posted: 07/18/2012 11:59 am

The recent Supreme Court decision upholding the Obamacare law contains several quite amazing and also scary elements.

The first is the simple fact that to everyone's surprise Justice Roberts was the swing vote. It has been reported that he switched his vote late in the decision process.

In all events, from the point of view of most Democrats, however he got there it is net-net a good thing.

However, to get there he joined with the conservative minority in the case to throw the Commerce Clause under the bus, which is fundamentally a very scary thing because it has been the cornerstone of how the Federal government has managed the U.S. economy for most of our history.

In one stroke he upheld health care -- a good thing. He put a serious crimp in the Commerce Clause -- a very bad thing; and he quite cynically at the same time sought to restore faith and confidence in the Supreme Court for upholding such an important law -- which is, if it were sincere, a good thing.

His decision is cynical because by using the Federal power to tax as the pretext for the Federal power to mandate purchase of health care insurance, it looks surprisingly like he was trying to sow the seeds of an Obama reelection defeat, which in turn probably would lead to the repeal of the law which he voted to uphold.

And, if he had voted to declare the law unconstitutional, if and when Obama is reelected, Obama surely would have sought to get a new version of the law passed again.

Most people knew Roberts was a smart guy. If this set of thoughts has any merit, he is a lot smarter and cleverer than most people ever imagined.

But, that is not all that he was being clever about. By upholding the law based upon calling the cost of purchasing health care a tax, he opened the door to Romney being able to say, "Look, Obama just raised your taxes." Nominally that argument may appear to have some merit, but again it really is not a tax in any conventional sense, it is simply the cost of purchasing -- at a very reasonable price by the way -- health care insurance which people need for themselves and to keep the whole system of health care from having to subsidize health care given to uninsured people, when they get into the system and get free rider care.

And, to make it worse, that alleged "tax" is in effect levied largely on poorer people to lighten the argument against raising taxes on the richest people. Perhaps Roberts was hoping those poorer people would not like being taxed that way and would vote for Romney to help him get elected and then try to repeal the health care law.

If you care at all about the future direction of the Supreme Court and who will name successor Justices in the next four years, do not be mislead by Roberts' head fake and apparent conversion to a sensible middle road swing position, which he might also have intended to help Romney get elected by lowering any Democrat concerns about the problem of future appointments to the Court.

So whatever you may think about health care, BEWARE the future role of the Supreme Court in shaping national policy matters in making your decision how to vote this November.

 
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