John Yoo: Chief Justice Roberts and His Apologists

Some conservatives see a silver lining in the ObamaCare ruling. But it’s exactly the big-government disaster it appears to be.

John Yoo
The Wall Street Journal

White House judge-pickers sometimes ask prospective nominees about their favorite Supreme Court justice. The answers can reveal a potential judge’s ideological leanings without resorting to litmus tests. Republican presidential candidates similarly promise to appoint more judges like so-and-so to reassure the conservative base.

Since his appointment to the high court in 2005, the most popular answer was Chief Justice John Roberts. But that won’t remain true after his ruling on Thursday in NFIB v. Sebelius, which upheld President Barack Obama’s signature health-care law.

Justice Roberts served in the Reagan Justice Department and as a White House lawyer before his appointment to the D.C. Circuit Court of Appeals and then to the Supreme Court by President George W. Bush. Yet he joined with the court’s liberal wing to bless the greatest expansion of federal power in decades.

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a “substantial victory,” in the words of conservative columnist George Will.

After all, the reasoning goes, Justice Roberts’s opinion declared that the Constitution’s Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful…

The article continues at The Wall Street Journal.

RelatedLimiting the General Welfare Clause  The Hamiltonian view of the provision has expanded government.

Also,  Norquist: 20 Hidden Taxes in Obamacare

UpdateKrauthammer and Yoo may both be right about Roberts

…Roberts’ decision is yet another example of the attacks of weakness observable among Washington conservatives (including some on the Supreme Court), which is to be contrasted with the dependable boldness of Leftists, who maximally utilize every branch of the federal government, public opinion be damned, to advance their agenda: e.g., the Court (Roe, Lawrence), the Congress (Obamacare) and the Presidency (Obama’s lawless deportation order)…

Laura Ingraham’s O’Reilly Factor Interview with Two Constitutional Scholars

Laura Ingraham had a great interview with two constitutional scholars last night, Michael Carvin, the attorney who argued the case before the Supreme Court and law professor John Eastman. She started with a quote from Ann Coulter from 2005, “We don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.” Carvin said that Roberts deliberately ignored the law and called a ball a strike. Eastman said Roberts should resign..

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