By William Bennett, CNN Contributor
The Supreme Court’s verdict on Obamacare is in. As a tax, the individual mandate stands; as a Commerce Clause regulation, it fails.
What remains to be seen is whether Chief Justice John Roberts has crafted a masterly constitutional balancing act — limiting federal authority and respecting the separations of powers — or if he has engaged in a disappointing and inappropriate usurpation of the legislative function.
There are arguments on both sides. Some say that Roberts, not wanting to uphold the liberal reasoning behind Obamacare and an unprecedented expansion of federal power, concocted an opinion that would be limiting in scope, while still respecting the law and seeming nonpartisan. Others say that Roberts has unlawfully manipulated the mandate into a tax, thereby giving legs to a law that has none.
What the country thought was a debate over federal regulation of interstate trade has been transformed by Roberts into a debate over Congress’ power to shape decisions through taxation. He writes in the majority opinion, “The mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.”
The dissenters, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, adamantly disagree: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it…”
The dissent is right. Roberts recast the mandate as a tax, a rationale that was not in the law or the government’s case. He rewrote the administration’s position, baptized it, and then blessed it. Roberts’ defenders argue that he did so to avoid a constitutional crisis, but he may have created another by judicially re-legislating policy, a policy paid for and enforced by what could be essentially the largest tax increase in American history.
Roberts could have characterized the mandate as a tax and sent it back to the Congress, whose role is to legislate taxation, to redo. In my opinion, that’s what he should have done. If Roberts is so concerned with the integrity of the Supreme Court, he should know that its integrity rises and falls with the integrity of its decisions and its adherence to the Constitution, not public perception.