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June 29, 2012

A Date Which Will Live in Infamy

“The Constitution … is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” –Thomas Jefferson

The U.S. Supreme Court upheld ObamaCare Thursday, following Congress and the president in abdicating their oaths of office. In what no Leftmedia outlet will describe as a “narrow majority,” the Court upheld the constitutionality of this onerous and unpopular law by a 5-4 vote. The result is both devastating and a call to action. Patriots across this nation must rally to restore Rule of Law through the ballot this November.

The truly surprising element of the decision was how it happened. Four justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – agreed with the administration’s contention that ObamaCare’s individual mandate comports with the Constitution’s Commerce Clause. In other words, compelling an individual’s economic activity falls under Congress’s power to regulate interstate commerce. Four justices – Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy – dissented, with Kennedy writing, “In our view, the entire Act before us is invalid in its entirety” [emphasis added]. That would be correct.

Surprising most Court watchers, Chief Justice John Roberts cast the deciding vote in favor of the law, but by using different reasoning: The mandate isn’t constitutional under the Commerce Clause, but it is permissible as a tax. “The Framers gave Congress the power to regulate commerce, not to compel it,” Roberts wrote, “and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.” Certainly, the ruling establishes some limit to the ever-expansive Commerce Clause and for that, conservatives can be thankful.

On the other hand, Roberts ruled that simply renaming the mandate and its accompanying penalty a tax fully justifies it: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

As if to emphasize his personal distaste for the law, he offered an explanation that was both a rebuke of those who passed the law and a call to action for those who despise it: “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. 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.”

Elections do have consequences. Yet we’re perplexed that Roberts went so far out of his way to validate this massive power grab. After all:

· The Affordable Care Act itself does not call the mandate a “tax,” but rather establishes a “penalty” for failing to meet the “requirement” of buying insurance. As the dissenters noted, the Court opted “to save a statute Congress did not write.”

· Barack Obama vigorously insisted that the mandate is not a tax, as did other White House officials – all, no doubt, to appear to honor Obama’s phony promise not to raise taxes on the middle class.

· The administration’s attorneys argued before the Court both that it isn’t a tax and that it is a tax, something defending the convoluted law forced them to do.

To justify his overreach, Chief Contortionist Roberts quoted Hooper v. California, in that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” What Roberts and the majority did, however, was a disgraceful re-construction, not reasonable construction. As the dissenters put it, “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” There is speculation that Roberts changed his mind. But either way, Roberts was perhaps trying to salvage the Court’s reputation and avoid a “political” ruling, or maybe he was merely highlighting the political choices before us – never mind that he wasn’t asked to do those things.

In a silver lining, the Court struck down 7-2 a provision of the law regarding Medicaid expansion. The Washington Post explains that the Court ruled “that the federal government cannot withdraw existing Medicaid funding from states that decide not to participate in a broad expansion of Medicaid eligibility.” As written, the law penalized states for not expanding Medicaid by pulling all of their federal funding. The Court rewrote this part of the law too, though, saying that the federal government could pull only additional funding from states that balk at Medicaid expansion.

Politically, the ruling settled nothing. It also tarnished Democrats’ “signature achievement” by making it little more than a massive and “regressive” tax increase that falls most heavily on the middle class. No wonder they used other means to justify it, and good luck to them explaining that tax increase to voters.

The Court also effectively made the election a referendum on socialized medicine. Mitt Romney declared, “What the Court did not do on its last day in session, I will do on my first day if elected president of the United States, and that is, I will act to repeal ObamaCare.”

Indeed, what we must do on Nov. 6 is oust the Democratic Socialists who have usurped our Liberty with their hugely unpopular law. But more than that, we must put in place elected officials who will restore Rule of Law – we cannot rely on unelected judicial despots. That goal is more critical now than ever. And as a parting thought, to paraphrase a quote attributed to Mark Twain, reports of the Tea Party’s death have been greatly exaggerated.

Read the rest of the Digest.

Quote of the Week

“[E]ven if the Court is correct that, under its jurisprudence, the mandate that undergirds Obamacare can be sustained as a tax, it is surely intolerable for the Supreme Court to aid and abet Congress and the President in the commission of a massive fraud: upholding as a tax something they swore up and down was not a tax – allowing them to enact as a tax something that would never have passed if honestly presented as a tax, allowing them to escape accountability for passing a massive tax increase.” –columnist and former DoJ attorney Andrew McCarthy

On Cross-Examination

“In 2008, Obama promised not to raise taxes on middle-class taxpayers. Oops. Maybe he can win back swing voters by telling them the word gullible isn’t in the dictionary.” –Wall Street Journal columnist James Taranto

The BIG Lie

“It should be pretty clear by now that I didn’t do this because it was good politics. I did it because it was good for the country.” –Barack Obama, whose only aim is the “fundamental transformation” of the United States

Tellingly, he made no mention of the word “tax” in his post-decision remarks.

This Week’s ‘Braying Jenny’ Award

“I knew that when [Ted Kennedy] left us he would go to heaven and help pass the bill. Now I know he was busily at work until this decision came down, inspiring one way or another. And now he can rest in peace.” –House Minority Leader Nancy Pelosi (D-CA)

Ted Kennedy went to heaven?

Don’t Give Up – We Sure Won’t

Thursday’s Court ruling may be discouraging, but we can’t let that keep us down. We must persevere in the fight for Liberty. We at The Patriot Post pledge to do so and ask you to stand with us today.

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