What Roberts Has Done Is RE-WRITE THE LAW

Roberts: 'Need Not Be Read To Do More than Impose a Tax'

From the Ace of Spades blog: 

"Read" or, say, "interpreted." While I agree with a practical approach to the law, engaging in interpretation on this scale is unwarranted. I disagree strongly with Chief Justice Roberts use of the word "reasonable" in his conclusion:

The Affordable Care Act is constitutional in part andunconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax . . .

(Emphasis added.) The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted. What Roberts has done is re-write the law.

I also think the conclusion is very strong. Roberts decision is deemed to be "anti-formalist" because it does not demand of Congress that they be clear in wording about whether their law compels a mandate or a tax. It doesn't matter, says Roberts, because "No one would doubt that this law imposed a tax".


It doesn't matter, essentially, because everyone understood it was a tax. Even if Congress didn't understand it was a tax. Even if Obama committed fraud on the American by refusing to acknowledge it was a tax. Even if the flim-flam was brought by the glib-glam of the media in an overwhelming surge. The same Americans who are not deemed capable of understanding what an ARM is, are suddenly thought to be more intelligent than theirr Congresspeople, and more intelligent than Economists and Accounting theorists the world over. 


And so,

The kind of "pragmatism" or "anti-formalism" like we've seen today is a slippery slope. It takes onus away from Congress to legislate in a clear fashion and opens up the interpretation of statute to too much convenient second-guessing by the court. 

This is less about the rule of law than it is the rule of men. Because where do you stop? Why not "read" the law utterly subjectively as whatever you want, solely depending upon utility in the moment?