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To be sure, the ruling may have the effect of re-energizing the Tea Party and creating another electoral tsunami, as happened after the ACA was passed into law in 2010. (If such a tsunami does slam into Washington this November—and the GOP wins a slim Senate majority—Sen. McConnell would be well within his power and rights to pass the ACA repeal under the same un-Senate-like, simple-majority rules Sen. Reid rammed through the original ACA.)
But that’s all beside the point. Roberts is right to say that the Court’s job is to interpret the law and steer clear of policy judgments. Yet he seemed to do the very opposite with this decision, wading deep into the policy debate by rewriting the law, even relabeling parts of it to make it pass his definition of constitutional muster. If the individual mandate wasn’t a tax when Congress passed the bill—and all of the ACA’s advocates, especially President Obama, said it wasn’t—it is not the Court’s job to help Congress out of an unconstitutional fix of its own making. “The court imposes a tax when Congress deliberately rejected a tax,” as Justice Anthony Kennedy matter-of-factly put it. “The values that should have determined our course today are caution, minimalism and the understanding that the federal government is one of limited powers,” he wrote. “But the court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.”
That’s the worry we are left with. Is this nation that was founded on the rule of law and limited government, on shared powers between federal and state governments, on individual liberty and free enterprise, nearing a tipping point where liberty is limited but government is not, where so many people depend on government for so many things that the incentive to produce disappears, where tricks and word games and lies are employed for after-the fact justifications of bad law? Or are we at the threshold of a turning point, when things are brought back into balance?
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