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Guest editorial: Court's decision sound, potus onus on voting public, for the fourth

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Posted on July 5, 2012 |
By Emerson Lynn



For months, the chattering class occupied itself with the self-appointed task of telling people how the court would rule on “Obamacare” and why. And they were wrong. Almost without exception. No one predicted that Chief Justice John Roberts — nominated by former President George Bush — would side with the court’s four liberal justices to give President Barack Obama his most sought-after victory.

That level of miscalculation is a reflection of the political times in which we live. We are too willing to take things to the extreme, to believe there is no room for compromise, or restraint.

Chief Justice Roberts was too wise to be drawn into that maelstrom. He understood that by siding with the court’s conservatives and overturning the law that the court would be forever stained as judicially active in a purely political sense. As chief justice, the reputation of the court is his charge. By siding with the liberals, he made it difficult for commentators — and by extension, the public — to characterize the court as reflexively conservative. He brought the court’s image a bit closer to the political center.

That’s a good thing. As Mr. Roberts said in his confirmation hearing, the court’s role is to call the strikes and balls, not to bat and pitch.

It’s a shade more than four months before the presidential election in November. If the public is so opposed to the health care law, the way to change, or repeal it, is through the ballot box. Elect a new president. Elect new members of Congress.

What Chief Justice Roberts said, in effect, is that choice is the public’s, not the court’s.

We should not expect the court’s decision to end the political rancor. It won’t. By defending the law as a “tax” and not something acceptable under the Constitution’s Commerce Clause, the court has defined part of the law, the individual mandate, in a more politically explosive term.

The political right will use that to its full advantage. Obamacare will now become a tax, something easily understood and easily exaggerated.

In turn, the president and his party will use the image of a conservative court’s blessing as proof that the law is not as adventurous as conservatives had alleged. If a right-wing U.S. Supreme Court thinks the law is OK, then it must be a reasonable piece of legislation.

For the moment, the advantage slips into the president’s column. The ruling helps with the political moderates who are seeking evidence of the president’s strength and direction. It will rile conservatives, particularly the Tea Party variety, but the president has no currency in their throngs. He understands that elections are won in the middle.

Conservatives were not shut out in Thursday’s ruling. Although the court largely upheld the constitutionality of the law itself, it did so on the narrowest of interpretations. In the chief justice’s majority opinion, he made it clear the government’s argument was wrong, that the individual mandate could not be justified on the basis of the Constitution’s Commerce Clause. In so doing, the court made it clear that the Constitution’s powers are enumerated and that Congress had exceeded what the court thinks is acceptable, which means the inclination by Congress to expand its powers has hit a judicial roadblock. For conservatives looking beyond the health care law, that is a substantial victory. They will repeat Chief Justice Roberts’ words: “The Framers … gave Congress the power to regulate commerce, not compel it.” They will use the ruling to test other laws, or to argue in opposition to other initiatives by the legislative branch.

Perhaps professional observers missed Thursday’s outcome because it was respectful of the political process, something that does not fit with ratings or audience size or dreams of self-marketing. They were looking for, or expecting, a decision that escalated the polarity, something upon which today’s way of communicating depends.

Thankfully, Chief Justice Roberts denied them their wish. As he noted, policy 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.”

Indeed.

by Emerson Lynn

St. Albans Messenger

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