Clayton Cramer, among others, points out this passage in the NFIB v. Sebelius decision:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
I disagree with what I understand of the Court’s logic, but this really is the key point in the entire business.
“We, the People,” it says here; and if we don’t do our job, we deserve what ever we get.
Randy Barnett explains the point about as clearly as can be done.
“Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power. Because a Commerce Clause regulation could be upheld up to and including imprisonment as drug laws are, but this power is limited to paying a tax (for those who pay taxes) and can be as politically toxic as taxes are.”
I asked him whether a future Congress could just repeat what we saw in this instance – call a mandate a penalty for the purposes of passing the bill, then switch around and call it a tax in court.
“That is never going to happen again,” he insisted. “No one is ever going to fall for that again…The findings in the (health care) bill were Commerce Clause. The findings in the next bill will have to be taxing power.”
Warning: See comments there. The situation is still dangerous.
Sayeth the Sages:
Between honorable men, no contract is necessary. Between dishonorable men, no contract will suffice.
