Eric Erickson Liberty Counsel 5/29/12

Obama and Democrats maintained that the individual mandate was within the scope of the Commerce Clause and also maintained that the penalty being utilized to enforce the mandate was NOTa tax.

The Supreme Court dealt with three clauses, Commerce Clause, Necessary and Proper Clause and the Tax and Spending Clause. Once Chief Justice Robert and the majority agreed on the Tax and Spending Clause the Chief Justice had an obligation to reset this case for oral argument. He did not.

Justice Kagan, whom as Solictor General had major particiation in the development of the government's case being worked up for submission to the Supreme Court had an obvious "conflict of interest" which was sufficient for her to recuse herself. She did not.

If Chief Justice Roberts's opinion was that the madate was a tax then the Anti- Injunction Act should have been triggered. It was not. The Anti Injunction Act states that the tax must first be applied before a suit can commence. The tax would not have applied until sometime after 2014. The ObamaCare tax is a tax on the middle class.

Why did Roberts rule as such?:

1.Roberts made the decision to demonstrate that the Supreme Court was above partisan politics.

2. Roberts by his decision forced this issue to the political arena and away from being a legal issue.

3. While Roberts expanded the taxation issue he curtailed the negative implication of the Commerce Clause.

What are some of the implications :

1. The left wing can no longer claim that the Supreme Court is a conservative court and new liberal appointee are need as a re-balance.

2. Democrats are now obligated to run on this new tax issue

3. Republicans need to shut down the individual mandate, force Democrats on the record of favoring the mandate and defund ObamaCare.

IMHO Chief Justice Roberts implemented bad law while ignoring his obligation to re-set this case for oral argument and/or to invoke the Anti Injunction Act. His actions clearly signal his desire to wash his hands of the matter. His actions to the contrary were cowardice.