Posted as a comment over at WordUp:
My initial response to Roberts was that he gave us a lot for a loss. That was before I drifted toward frustration toward him. At this point I am not ready to call what Roberts did in supporting ObamaCareTax masterful, but I am quickly finding my way back in that direction and will be firmly there if the electorate does its part.
My concerns are threefold. One, ObamaCareTax did not die - two, the decision was dependent on the use of judicial activism - and three, there is the possibility that congressional taxing powers have been expanded.
But when I score this decision I do not come out with a win for liberals.
=== 1) The Commerce Clause has taken a hit. I know Levin says otherwise and although I respect him I do not agree with him. A majority held that that while Congress can regulate commerce, it cannot compel individual commerce. (Strike One for liberals)
=== 2) A 7-2 majority also found that withholding a state's medicare funds for not creating state insurance exchanges is unconstitutional. This opens the door to state nullification by well over half of the states. Many have already nullified ObamaCare to some extent or another. (Strike Two for liberals)
=== 3) The expansion of the congressional power to tax --- Roberts did not find that coercion via congressional taxing power was constitutional. He found that it was not coercion if what the government provided in return was of equal or greater value than the tax. He also found that if the tax were greater than what the government were to provide in return, that at that point the tax would become a coercive penalty and as such unconstitutional.
The example of broccoli is used by many conservatives when they argue that congress's taxing authority can now be used to force one to buy broccoli. No it can't. The reason is that the government in the broccoli scenario is not providing something in exchange for the tax that is being used as a penalty for not buying broccoli. If nothing is being provided in exchange for the tax then the tax becomes coercive thereby making the whole broccoli scenario an unconstitutional act. (Strike three for liberals who thought the government had been grated coercive powers. Also the concern over coercive taxation goes down.)
=== 4) The Necessary and Proper Clause too was prescribed by the court in that SCOTUS found that the Necessary and Proper Clause could not be used to coerce commerce. Again, liberals had hoped otherwise. (Strike four for liberals who thought government could coerce commerce)
This leaves me wondering just what liberals got out of this decision.
=== 5) Liberals and Obama got ObamaCare. Conservatives wanted ObamaCare ended. That did not occur. (This is clearly a strike for conservatives)
But what is and where is ObamaCare now? It can't force insurance exchanges on the states and as such the states can now choose to opt out. This alone makes what was politically an albatross two years ago a broken albatross today.
Furthermore, ObamaCare is once again at the mercy of the electorate. If the electorate decides to end ObamaCare by voting in the right representatives and limp conservatives can grow backbone enough to do the hard work of killing ObamaCare, the conservative electorate can do what Roberts could not. (Down goes my concern over ObamaCare not have been ended by the court.)
This was Robert's gamble. In entrusting the death of Obamacare to the electorate Roberts was able to sell his support for the bill to the liberals on the court at an astronomical price, one that allowed him to close all the paths to government coercion a future ObamaCare or similar contrivances might utilize in attaining enactment.
All liberalism got in this decision was a win, one that broke ObamaCare's state enforcement mechanism, a win that allows for no second chance at ObamaCare, and the distinct possibility that ObamaCare will be stuck down by the electorate.
Roberts may have created the conditions for a checkmate if only the electorate is still in the game.
What of the justices? Were the liberals on the court so desirous of a win that they could not see the cost of siding with Roberts? They were forced to accept his reading, one that found ObamaCare constitutional by rewriting the bill in question, in exchange for his support of ObamaCare. Could it be that the liberals on the court so deeply denied the existence of judicial activism that they could not see it being used against them?
(Reminder - of the three concerns I listed earlier only one remains --- the question of Robert's use of judicial activism.)
Liberalism may come to realize just what judicial activism is and come to hate it as much as conservatism currently does when they fully understand the magnitude of the loss they may have suffered at the hand of one man wielding judicial activism.
Perhaps when we all come to despise judicial activism its use will end. And with it the last of my three concerns.
I'm not there yet, though.
[edited from the comment for clarity]