Thirdly, the Congress can now tax us for not doing something, but this power is not nearly so dangerous as the power that the Court limited, namely, the commerce power. Laws passed under Congress's power to tax and spend may only take our money. Our recourse against this tax is the same recourse we have been employing since 2009, to wit, mobilizing and going to the polls. In 2010, it led to an historic sweep at the state and federal level. In 2012, the sweep will continue landing Mitt Romney in the White House, where he says he will make repealing and replacing Obamacare his preeminent priority. He can also refuse to enforce the tax by executive order. The next Congress can repeal it using reconciliation to avoid a Senate filibuster if necessary.
All things considered, we conservatives did not come out so badly, which should demonstrate once again how dangerous Obamacare is. Prior to Chief Justice Roberts' juggling act Thursday, the conservative majority on the Court was going to bounce Obamacare, and the Liberals could continue their noble work of deauthorizing an entire branch of the federal government, the courts. They could smear the Supreme Court as but another locale where crass conservatives play politics. You know how the otherworldly Liberals disdain mere politics! Now Chief Justice Roberts has responded to the better angels of his nature, and the Liberals are applauding. As I have said, Liberalism is dead.
Roberts may be another conservative figure of historic dimensions, as was Marshall. In 1803, Marshall was confronted by the outgoing Federalists' appointment of the "Midnight Judges," last minuet appointees to the federal bench. When one of those appointees, William Marbury, did not get his commission, he took it to the Supreme Court under the Judiciary Act of 1789. There sat Chief Justice Marshall, a Federalist and a believer in a strong federal government. He took the long view. He too, like Chief Justice Roberts, was crafty. He ruled that Marbury was entitled to his judgeship, but the Constitution did not give him the authority to raise Marbury to the court. The provision of the Judiciary Act, by which Marbury claimed his commission, was unconstitutional.
Chief Justice Marshall thereby established the principle of judicial review. This time around, might Chief Justice Roberts have curtailed the pernicious commerce clause and pared back the federal government's ability to coerce the states? Might he have returned Obamacare to another round of democratic process? History continues to be filled with surprises. We shall await its judgment.
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