Topic category:  Constitution/Constitutional Crises

Occasionally the Supreme Court gets it horribly wrong.

On June 28, 2012, the Supreme Court's Obamacare decision joined the Dred Scott case, Plessy v. Ferguson, Roe v. Wade and Planned Parenthood v. Casey as abominable (and unconstitutional) Supreme Court decisions that the Supreme Court made.

It was no surprise that Justices Scalia, Thomas and Alito would have struck down Obamacare as unconstitutional.

That's because it is.

Had Justice Kennedy joined the SCOTUS liberal judicial activist bloc (Justices Ginsburg, Breyer, Sotomayor and Kagan) and SCOTUS had held, 5 to 4, that the Obamacare individual mandate was constitutional under the Constitution's Commerce Clause, those of us who embrace constitutional fidelity and eschew any type of judicial activism would have been greatly disappointed, but not shocked.

What happened was shocking--Justice Kennedy got it right and Obamacare (and the HHS regulations under it violating religious liberty and freedom of conscience) would have been struck down if Chief Justice Roberts had not opted to treat what purported to be an exercise of Commerce Clause power and not taxing power as an exercise of taxing power AND treated what the law specifically identified as a penalty on persons who choose not to buy health insurance as a legitimate tax.

I don't know whether Chief Justice Roberts was intimidated by President Obama's attack on the Supreme Court's Citizens United decision (a 5-4 decision in which he rightly joined Justices Scalia, Kennedy, Thomas and Alito), or fearful that doing the constitutionally correct thing would have terrible consequences that had to be avoided notwithstanding the Constitution and his judicial oath, or eager to become the darling of the liberal media establishment instead of a target, or simply under the erroneous impression that it was permissible for him to essentially rewrite a federal statute in an effort to make it constitutional, even though it is plainly unconstitutional as written and would not have been enacted if it had been presented as an exercise of the taxing power.

Regardless, the result was that Team Obama's outrageous "bait-and-switch" was ratified by five Supreme Court Justices instead of rejected and that needs to be undone by the people making the right choices of Election Day 2012 and the next President and Congress acting promptly to repeal and place Obamacare.

Edward Whelan, president of the Ethics and Public Policy Center put it this way in a Bench Memo on the Obamacare decision (www.nationalreview.com/bench-memos/304335/some-initial-thoughts-ed-whelan):

"The Obama administration got away with its bait-and-switch, first denying that the penalty for non-compliance with the mandate was a tax (and winning more favorable scoring from the Congressional Budget Office in the process), then salvaging the mandate-with-penalty on the ground that it could be reconceived as a tax. Any 'tax,' of course, is a tax on being uninsured—not, I would suspect, a tax that will suddenly win a lot of favor among the American people. In November, it will be time to make the Obama administration pay the price for its shenanigans."

Exactly.

Finally, who nominates Supreme Court Justices and federal judges is critical.

Team Obama conned Congress and the people and still Obamacare would not have been upheld without his two faithful SCOTUS appointees.

At his confirmation hearing, now Chief Justice John Roberts testified:

"Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

"The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

"But it is a limited role. Nobody ever went to a ball game to see the umpire."

"I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat."

So much for that commitment!

In the hugely important Obamacare case, Chief Justice Roberts stopped calling balls and strike and playing by the rules and brazenly took to the mound to pitch in relief of President Obama.

President Obama has secured the passage of Obamacare, barely, by selling it an exercise of the Commerce Clause and adamantly denying that its heart--the individual mandate--was a tax.

That was the pitch that Chief Justice Roberts was supposed to call.

Chief Justice Roberts recognized that the legal predicate for the individual mandate was inadequate.

Instead of a throwing a strike across the constitutional plate, President Obama had thrown a ball and Chief Justice Robert's duty was to call it that and see that the ball was returned to the pitcher.

BUT ...instead of just calling it a ball and waiting for the next pitch, as he had pledged, Chief Justice Thomas essentially put himself in as a desperately needed relief pitcher for President Obama, pitched the individual mandate as a tax and then called his own pitch a strike!

That's arrogant liberal judicial activism, not conservative constitutional fidelity.

President Obama's bait and switch--insisting to the people and Congress that the individual mandate was not a tax in order to get it passed and then having his Solicitor General argue otherwise in the hope of having it upheld--is Obama's shame.

Blessing that bait and switch is the Chief Justice's shame.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.