The recent national brouhaha and almost unanimous surprise amongst the commentariat regarding Obamacare has enflamed the passions of a majority of Americans.
Yet aside from the repetitive fact recitals regarding healthcare rationing, government expansion, job destruction and more in the long litany of objectionable elements, there is an interesting but fundamentally misguided side conversation happening among the conservative intelligentsia.
There are those in the constitution-loving right that seek to portray the actions of Chief Justice Roberts as in accordance with highest prerogatives of the court to protect the Constitution. They posit that the striking down of the commerce clause rational for the health insurance mandate maintains the traditional limit of federal power under the constitution.
Moreover, they point out the federal government has a constitutional right to tax and that recognizing this as Roberts does puts the issue of Obamacare back into the electoral arena where it belongs. The Obama administration may or may not be on the defensive, as they have long said that there was no tax in the legislation, but this is at most an addendum to the debate with in the conservative elite.
Juxtaposed to this are those who say that this was a clear case of legislating from the bench – they have two points. First that the clear intent of the Congress was that this was a penalty not a tax and they point to fact that even the administrations lawyer only reluctantly argued from the tax perspective after prodded by the justices to do so.
The court, they say, has usurped the power of the legislature by asserting a new power to redefine anything it so desires. Second this camp finds the separation the court made between the funding the federal government gives the state for medicare and for obamacare to be judicial over reach and akin to the court determining budget issues. Naturally, they are still concerned with coercive federalism but two wrongs do not make a right.
For all the wonderfully intellectual analysis, the debate around Obamacare and the courts ruling proved one point both sides seem to miss. We have forgotten the true victim in all of the constitutional jargon: Limited Government. No matter what the justification or reasoning, limited government is dead.
The question for we conservatives few, we band of brothers, do we want to resuscitate it?
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