Steve Forbes ponders within the pages of the latest issue of Forbes whether the Constitution has lost all meaning.
THE SUPREME COURT DECISION to ignore the actual wording of the Affordable Care Act and allow federal subsidies to policyholders in states that don’t have their own insurance exchanges is the latest sad–and dangerous–chapter in the erosion of the core principle of our Constitution: the separation of powers. Chief Justice John Roberts himself once talked about how a judge should be similar to a baseball umpire, making calls based on written rules. How quaint that sounds now after his latest demolition job on the Constitution.
The High Court, with occasional exceptions, has deferred more and more to the other two branches of government when they’ve committed acts that violate the basic law of the land, especially if the laws have expanded the power of the government. Liberal justices long ago adopted the attitude that the President should pretty much be free to do as he wishes if he’s advancing modern liberalism. Our Founders focused on how laws are enacted. Today the focus is on the ends, not the means, which, of course, leads to tyranny.
Justice Roberts, to the applause of his liberal colleagues, has gone beyond the Supreme Court’s supine attitude and is now in the business of rewriting existing laws. The constitutional challenge to ObamaCare that began soon after it was enacted in 2010 was based on the individual mandate. Never before had the federal government decreed that citizens had to buy a product or service. It’s one thing to mandate that a person get a license before being permitted to drive on a public road but quite another to force people to purchase something. Yet on June 28, 2012 Roberts, in a convoluted decision that would have caused him to flunk a constitutional law class, decided that the fines imposed for not buying insurance weren’t fines but a form of taxation.
Roberts, the law rewriter, was at it again last month in the subsidy case: Yes, Congress didn’t draft the legislation very well, but we justices can divine what the legislators really meant or (even worse) what they should have meant. Justice Antonin Scalia, in his withering and on-target dissent, hammered home the seemingly obvious point that it is up to Congress to clean up its own messes.
For years state courts have notoriously expanded their powers, especially when it comes to state funding of education. Sadly, the Supreme Court has caught this virus.