Some Consequences of the Roberts Decision

There will be consequences. Here's an early one.

That is an obvious consequence of this: John Roberts has conducted a judicial rewrite of the Obamacare "health care" bill (that Congress called the "Patient Protection and Affordable Care Act") to turn it into a massive tax. But, if it is a tax, then the Roberts ruling is completely improper.

1. An Obamacare tax cannot be litigated yet, due to the Anti-Injunction Act, since this tax is not yet being collected.
2. Tax bills must originate in the House of Representatives, but this bill originated in the Senate.

The Roberts decision asserts the individual mandate simultaneously both is and is not a tax. Particularly under the circumstances of this case, this finding is improper.

The view isn't better from the other side of the argument. If the individual mandate is a tax, then the White House and Congressional Democrats are guilty of perpetrating a massive fraud against us. All the more so since Obamacare absolutely would not have been passed as a tax. In fact, it would not have passed if there were any hint that it might be a tax. Indeed, as Justices Scalia, Kennedy, Thomas, and Alito noted,

the Democratic majority in Congress rejected an earlier version of the bill that became ObamaCare precisely because it imposed a tax — lawmakers intentionally substituted a mandate with a penalty for failure to comply so they could continue to contend that no one’s taxes were being raised. (emphasis in the original)

Now, Roberts asseerts Congress just inadvertently put the "wrong label" on their tax increase — changing its character after all the briefs and the oral arguments have been completed, to something even the Court's own hired outside lawyer (as well as all the parties to the case and the law and its history) said it wasn't — and that Roberts says earlier in his own decision that it was not. That, in an of itself, is an egregious violation of due process that no one would permit in a criminal case.

[Chief Justice Roberts & Co.] said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences — like tax and penalty — and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly. (emphasis in the original)

Roberts gives lip service to the idea that the Court should honor the legislative process, and then directly violates that concept. “Due process would not allow this to be done to a criminal, but the Supreme Court [Chief Justice Roberts] has decided that Americans will have to live with it.”

And that says there are also longer-term consequences.