FrontPage| 7.4.12
By Alan W. Dowd

It’s interesting that the Supreme Court’s final decisions from last week—the blockbuster healthcare-law decision and the lesser-noticed decision on the Stolen Valor Act—deal with lies. In throwing out the Stolen Valor Act, the Court basically said it’s OK to lie about being a decorated military hero. The decision is regrettable, but we can take some solace in knowing that it will affect only a tiny fraction of the country’s 313 million residents. The ruling on the Affordable Care Act (ACA) is quite another matter. In upholding the ACA, the Court aided Congress and the White House in perpetrating a fraud on the American people. Think about it: Only by labeling the law’s individual mandate a “penalty” rather than a “tax” were the ACA’s supporters able to find enough votes to pass the bill—and just barely at that. But only by redefining the “penalty” as what it always was—a “tax”—was the Court’s majority able to salvage the law. In short, the High Court basically said it’s OK for Congress and the White House to lie in order to move unpopular legislation.

Whether this awakens some silent majority committed to liberty and the rule of law or throws open the doors to President Obama’s “L’état, c’est moi” form of government, we will not know until November 6.

What we do know is that the ACA, with all its tendrils and tentacles, lives. The Court had a chance—some would say a duty—to kill it and instead protected it by offering a new rationale for it.

Some observers—grasping, scrambling, struggling to make the most of this anti-liberty decision—have argued that Chief Justice John Roberts’ majority opinion was actually a poison pill for the ACA. “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments,” he wrote. “Those decisions are entrusted to our nation´s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Contortionist conservatives point to this paragraph as evidence of Roberts’ real intention: to force the issue back into the political process and to challenge conservatives to make the case in this year’s presidential and congressional elections.

To be sure, the ruling may have the effect of re-energizing the Tea Party and creating another electoral tsunami, as happened after the ACA was passed into law in 2010. (If such a tsunami does slam into Washington this November—and the GOP wins a slim Senate majority—Sen. McConnell would be well within his power and rights to pass the ACA repeal under the same un-Senate-like, simple-majority rules Sen. Reid rammedthrough the original ACA.)

But that’s all beside the point. Roberts is right to say that the Court’s job is to interpret the law and steer clear of policy judgments. Yet he seemed to do the very opposite with this decision, wading deep into the policy debate by rewriting the law, relabeling parts of it to make it pass his definition of constitutional muster, and apparently rethinking and revising his own position midstream to salvage what he initially thought was an unconstitutional law.

If the individual mandate wasn’t a tax when Congress passed the bill—and all of the ACA’s advocates, especially President Obama, said it wasn’t—it is not the Court’s job to help Congress out of an unconstitutional fix of its own making. “The court imposes a tax when Congress deliberately rejected a tax,” as Justice Anthony Kennedy matter-of-factly put it.“The values that should have determined our course today are caution, minimalism and the understanding that the federal government is one of limited powers,” he wrote. “But the court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty...The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril…Today’s decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it.”

That’s the worry we are left with. Is this nation that was founded on the rule of law and limited government, on shared powers between federal and state governments, on individual liberty and free enterprise, nearing a tipping point where liberty is limited but government is not, where so many people depend on government for so many things that the incentive to produce disappears, where tricks and word games and lies are employed for after-the fact justifications of bad law? It seems an apt question to ask as we celebrate our independence.