Roberts’ Rules – Or Lack Thereof: The SCOTUS’ Ruling on Obamacare — Part I

Most freedom loving Americans responded with a jaw-dropping feeling of horror when we learned last Thursday that Chief Justice Roberts had taken it upon himself to save Obamacare. As conservatives, we frequently complain about activist judges – never did we think that one who was appointed by our most recent Republican President would rewrite the law that we believe is an infringement on our freedom and way of life. 

The decision itself is somewhat contradictory and confusing. On page 2 of his opinion, Roberts says, “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Apparently he somehow forgot about this by the end of his opinion, given that making Obamacare Constitutional certainly does not “limit” the National Government’s powers.

The largest contradiction of them all begins on page 7-8. Roberts writes, “The Act provides that the penalty will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund.” To confirm then, this is a penalty, paid as a tax. 

This is just the groundwork. Continuing to pages 11-12, Roberts explains that the Anti-Injunction Act provides for a suit to be filed only after a tax is paid, but that since this is a penalty and not a tax, the Anti-Injunction Act doesn’t apply here. In fact on page 12, Roberts writes: “There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.” So far in just six pages, Roberts has made this a penalty paid as a tax, a penalty that prohibits the application of the Anti-Injunction Act, and clarified that no law or decision relating to a “tax” may be applied here because it is in the legislation as a “penalty.” A penalty! Not a tax.

Also on page 12, Roberts explains, “Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax.” In the same sentence where he mentions the Anti-Injunction Act (meaning we cannot sue regarding a tax until it is paid), after arguing that this is a penalty in order for the Anti-Injunction Act to not apply, he now says it’s a tax. Then shouldn’t the Anti-Injunction Act apply now? Shouldn’t SCOTUS have to wait to hear this case until someone pays the tax? He continues to roll out the argument for his dichotomy, but frankly, it’s an explanation that exists only so he can call this a tax later on.

Thankfully, on page 20, Roberts states, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Yes, it most certainly would! And this was the crux of the entire argument — the Commerce Clause does not provide Congress the authority to require every person to purchase something (health care, in this instance). This should then be the end of the argument, conservative victory declared – right? Roberts even continues to discuss our Founding Fathers and explain why the Commerce Clause may not be used to substantiate Obamacare. Again, Roberts should have just stopped while he was ahead.

But no – Roberts states “That is not the end of the matter” on page 31. It is on page 33 that the explanation – which in my mind seems to be a far stretch of an excuse – to uphold the mandate as a tax begins. He references precedent, which, not being an attorney, I cannot argue on the merits. However, let’s recall that not even the Obama administration will admit that this is a tax. All of the Congressmen who voted for this bill never called it a tax, and never would have supported it as a tax. Can you see Representative “X” saying, “We’ve just passed the highest tax increase in history and we now control health care!” and with a big smile on his face? Hardly. This was never a tax, never intended to be a tax, and should now become a large political target as a result of this ruling.

The only advantage of calling it a tax, if you want to claim it as an advantage, is that the Senate can now overturn the law with only 51 votes rather than 60 (click here for details). But, this means that Republicans have to take back the Senate, keep the House and win the Presidency. 

When Roberts claims that the SCOTUS isn’t responsible for protecting the people from their elected officials, let’s remember- the vast majority of people do not want Obamacare. Here in Ohio, we opted out of the mandate with nearly 2/3 of the vote. 

While it may seem deflating or negative, I do not see imaginary silver linings in this ruling. We must now unify the party, and those on the fringes of the Republican party, to rally behind Romney and make sure he is elected. Whether you supported Paul, Johnson or anyone else, we must now make sure that the Republicans sweep D.C. and give us the opportunity to overturn Obamacare. If you think that supporting your fringe candidate is more important, you aren’t putting the country first. This is a year when the nation needs all of us — regardless of our ideological differences — to support the Republicans and give them all a chance to correct this travesty. Roberts left us with no other choice.

Part II will examine the rest of the ruling, including the Medicaid expansion.


  1. am voting Romney. i would vote for a cockroach over Obama. Your article is excellent. Posted it to and retweeted. Look forward to Part II. I did want to note that i still believe Herman Cain is the better candidate. Will always beleive that nor isMr Cain a fringe candidate-but it's is a whole other story. Our candidate-like him or not-is Romney and we have to get him elected. At least this time around. I look forward to 2016. We have to survive FIRST.It didn't help waking up to the SCOTUS ruling but it was definitely a wake up call. I agree with Levin.Term limits for the Justices and might i add Congress is long overdue.I just hope it would catch fire w/ ppl and we could 'get er done.'

  2. I appreciate it! Cain was my first choice, too. What I'm referring to are people who think they're going to upset the convention, that some 3rd party candidate will win, that Romney isn't conservative enough, etc. Romney is the nominee. He's our one choice, and people need to put the good of the country before their ideology and vote for him so we can repeal this travesty.

  3. From a legal standpoint, I think the Court ruled correctly against the commerce clause. I think calling it a tax is a mild stretch, because the fine would be paid to the IRS. But it passed and it's law. I would love to see the numbers showing that the American public didn't support it. And guess what, I am a freedom loving liberal!!!

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