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Weird, strange, infuriating. And maybe brilliant.
Chief Justice John Roberts is either the most savvy person on the Supreme Court, or an odd duck detached from his colleagues, the Constitution and the real world. Either way, he and he alone stands responsible for saving ObamaCare.
In a tortured opinion that infuriated the eight other justices, Roberts’ ruling sent off a false signal that led many reporters initially to misread it as overturning the individual mandate. He eventually reached the opposite conclusion, on grounds that almost nobody saw coming, a shocker that could scramble the political fallout.
President Obama is a big winner — sort of. He gets to keep most of his signature legislative achievement.
But, thanks to Roberts’ finding that the penalty attached to the individual mandate is really a tax, Obama is saddled with having imposed a huge hike on middle-class Americans, something he promised he would never do, and something he expressly said the law doesn’t do.
The president didn’t mention the T-word yesterday, saying after the ruling that “it’s time to move forward,” a not-so-subtle use of his campaign slogan.
Republicans and other opponents are the big losers — the law survives their objections. But the defeat and the tax issue have many more fired up today than they were before, and Mitt Romney grabbed the moment by saying that on his first day as president, “I will act to repeal ObamaCare.”
The frustrating part of Roberts’ decision is that it fails to provide the one thing everybody in the country wanted: simple clarity. He didn’t split the baby in half, but he did give each side enough ammunition to continue fighting. That actually seems to be part of his goal.
Arguing he’s no judicial activist, by his own definition, Roberts stressed that he wasn’t passing judgment on the law’s wisdom so much as finding a way to authorize legislation crafted by elected officials. “It is not our job to protect the people from the consequences of their political choices,” he wrote.
That loaded statement reveals that Roberts aims to keep the court out of the partisan crossfire and preserve its independence, not only in reality, but in perception. By joining with the four liberals to make a majority, he defuses the partisan argument for now.
But to get there, he created a novel way to support the individual mandate. He agreed with the four other conservative justices that it was unconstitutional under the Commerce Clause, saying it stretched government power too far. “The Federal Government does not have the power to order people to buy health insurance,” he wrote, wording that set off premature celebrating by opponents.
But Roberts went on and, contradicting supporters, including Obama, Roberts said the mandate “can be read” as a tax — and as such, the law is constitutional.
Let us count the oddities. Start with the fact that ObamaCare never would have passed had the penalty been called a tax in Congress. In fact, a version calling it a tax was rejected. It barely passed both houses only after the wording was changed because many Democrats refused to vote for another tax hike. Now, it turns out, they have.
It is also odd that Roberts defended his finding on the grounds of judicial restraint. By making possible the enactment of ObamaCare, a law that has taken on antichrist proportions in some circles, Roberts will not persuade many conservatives he is one of them, no matter his legal rationale or desire to protect the court.
Moreover, Roberts seems to open the door to expanded government taxing power, hardly a conservative virtue.
Indeed, the other conservative justices railed that his interpretation “carries verbal wizardry too far, deep into the forbidden land of sophists.”
Those four thought the whole law invalid, while the four liberals who joined Roberts to uphold the law believed he reached the right conclusion for the wrong reason. They believed the fines levied under the mandate should be approved under the Commerce Clause and not as a tax. They, too, blasted Roberts’ reasoning, even as they went along with him to make a majority.
The court also ruled that Congress has no right to penalize states that don’t adopt the particulars of Medicaid expansion required. The threat to take away all other Medicaid money violates state sovereignty, the majority said, a ruling that throws confusion over the state exchanges.
The split rulings mean a final resolution of ObamaCare will have to be settled in November. That suits John Roberts just fine.
On that one point, at least, he is absolutely correct. We the people, and not the courts, are responsible for our political choices.
This commentary originally appeared in The New York Post and on NewYorkPost.com.