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Roberts Court takes on Obama dragoons

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POSTED June 28, 2012 8:29 p.m.

I approve. Chief Justice John Roberts has written a cagey political decision upholding Obamacare in order to keep the court from being too politicized. That's a good thing.

"We do not consider whether the Act embodies sound policies," Roberts wrote. "That judgment is entrusted to the Nation's elected leaders."

Roberts believes that the court should render a "permissive reading" of duly enacted laws. "It is not our job to protect the people from the consequences of their political choices," Roberts wrote. That's why we have elections.

The majority of the Supremes essentially found that the Affordable Care Act's individual mandate is unconstitutional as a power authorized under the commerce clause, because the government cannot make citizens buy broccoli. But the court found that Obamacare's "shared responsibility payment" is constitutional if it can be construed as a tax, because Washington does have taxing authority.

Stanford Law School professor Michael McConnell is one conservative who predicted this outcome. "It was actually better than I thought," McConnell told me Thursday. The majority rejected the argument that the commerce clause allows Washington to make people buy a product but allowed Obamacare's penalty on people who don't buy health care as a tax.

"The tax point, I think, is relatively harmless in the grand scheme of things because this never could have passed as a tax," McConnell noted.

No lie. President Barack Obama insisted that his health care package would not constitute a tax on the uninsured, because he didn't want to be seen as a tax hiker. Obama knew that if he called the "penalty" a tax, the Affordable Care Act would not have garnered enough Democratic votes to pass both houses in 2010.

McConnell believes that conservatives who are spitting mad at the decision are "shortsighted."

I agree. Obama doesn't get to reprise his favorite role as victim of GOP tactics. The onus to live with, clean up or gut Obamacare remains with Congress. The decision did not fall prey to right-wing judicial activism.

Besides, there's something tasty about Roberts saving Obama's signature legislation from oblivion — after then-Sen. Obama voted against confirming Roberts in 2005. So much for Obama the moderate, Obama who really wants to work across the aisle — more accurately known as Obama the fictional icon.

University of California, Berkeley law professor John Yoo doesn't think Roberts believes the content of his own opinion. Yoo believes that Roberts doesn't buy his own argument on the individual mandate but wrote an opinion "meant to pull the court out of a political fight."

Yoo concluded, "That's the real message for conservatives: We shouldn't put all our eggs in one basket and hope the Supreme Court is going to save us." He's right. Some fights are best fought in the ballot box.

The big bench also overturned the Obamacare provision to withhold Medicaid funds from states that don't sign on to the law's new spending — which Roberts likened to "economic dragooning that leaves the states with no real option but to acquiesce in the Medicaid expansion." For those of you who are younger than 30, dragooning is a term for coercion that hails from before the Revolutionary War, when civilians were forced to house occupying militia.

Good analogy, but Obamacare's most egregious dragooning can be found in the law's requirement that employers take in new health care benefits that Uncle Sam doesn't have to pay for. Elections have consequences, and they're not always pretty.

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