Chief Justice John Roberts and the Affordable Health Care Act: Both Anathema to the Constitution

“In his White House memoir, ‘Courage and Consequence,’ Karl Rove recalls being the lone non-lawyer among the group of George W. Bush aides who initially interviewed John Roberts for the Supreme Court in 2005. Rove asked Roberts to go back in history to name the justice whom he most revered. Roberts’ answer, Robert Jackson, intrigued and reassured Rove. When appointed in 1941, Jackson was serving as Franklin Roosevelt’s attorney general and had been expected to be a pro-New Deal rubber-stamp on the court. But, as Rove put it, Jackson ‘instead demonstrated a fidelity to the Constitution that Roberts admired.’” So writes Walter Shapiro @–how-does-george-w–bush-feel-right-now-.html

Jackson, it must be said, was mostly a rubber stamp for the New Deal. He was the author of the amazing Wickard v. Filburn, 317 U.S. 111 (1942), holding that home grown wheat that is all consumed on the farm is interstate commerce because it affects interstate commerce. For more on that monstrosity, see

In the ObamaCare case, writing for the majority, Roberts perhaps emulating his hero Jackson,  held (from the syllabus pp. 3-4):

CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.

“It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1 [The General Welfare Clause]. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v. California, 155 U. S. 648, 657, the question is whether it is ‘fairly possible’ to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31-32. 4. Pp. 33- 44 @

Despite Roberts embrace of the “general welfare’ clause as a source of unlimited taxing power, the Founders regarded the clause not as a federal power but as a restraint on federal power. As Jefferson said and Madison agreed:

“[To construe the clause as providing a] distinct and independent power to do any act [congress] might please for the good of the Union . . . would render all the preceding and subsequent enumerations of power completely useless.  It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States . . . .  Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and  . . . without which, as means, those powers could not be carried into effect. (Emphasis added.)”

For more, please see THE GENERAL WELFARE CLAUSE: “How a Constitutional Restraint Was Transformed Into a Constitutional Power @

Published in: on June 28, 2012 at 6:55 pm  Leave a Comment  

The URI to TrackBack this entry is:

RSS feed for comments on this post.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: