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Thursday morning when I first heard the results of the Obamacare decision, I recalled some words from John Roberts confirmation hearing back in 2005, when he referred to law as the “the wise restraints that make men free.” Until I read the decision, I assumed that he must be finding some way to show great deference to Congress. In fact, it was just the opposite. As the always brilliant Justice Scalia points out in his dissent, Justice Roberts didn’t interpret the statute. He rewrote it, and he did so in direct contravention of not only the Founders’ plan, as expressed in Federalist Papers, but also in the legislative history. That’s a legalistic way of saying Congress knew what it was doing, and it specifically rejected versions of the Affordable Care Act (I laugh every time I hear that name) that called the “penalty” a “tax.” He engaged in ridiculous gymnastics, sophistry really, first correctly stating that stretching the Commerce Clause to the point of penalizing those who don’t buy something would make the federal government’s power nearly unlimited, then proceeding to write an opinion that makes the taxing power of the federal government nearly unlimited. Why did he do it? We'll look at the theories, and then I'll tell you the real reason with the help of one of our special guests, who predicted in 2005 (!) that Roberts would betray conservatives.
It's good to talk.