"Knowledge will forever govern ignorance"

--James Madison--

"The real division is not between conservatives and revolutionaries, but between authoritarians and libertarians"

--George Orwell--

John Roberts And The Interstate Commerce Clause

Did you ever take a civics or government class?  Not enough Americans have.  Otherwise, the Supreme Court decision regarding the Affordable Care Act would be seen in a different light than what most pundits and commentators are currently painting it as.

This is not just a matter of the Chief Justice simply changing sides for one decision.  This is not the story of a Supreme Court Justice suddenly developing a fondness for social programs. It's not a matter of extortion, or big business money.  Not even a ploy to see if  Glen Beck's head would explode.  Although that would have been nice.

No.  This was a matter of preserving the power of the Federal government, a government in which he holds a key and powerful position.

Those who did take one of those civics or government classes might remember going over something frequently referred to as the "Twelve Powers of Congress".  Also known as Article I, Section 8 of the US Constitution.  This section delineates exactly what areas of law that Congress has the power to legislate.  

Sort of, anyway.  One of the problems with having a constitution as short as ours is is that there's a lot of squishy language in there, written in 18th century legalese.  So maybe it's not all as clear as it could be.

The Twelve Powers of the US Congress:

*Impose and collect taxes

*Borrow money

*Regulate interstate and international commerce

*Set immigration and naturalization law and policy

*Coin money, and establish punishment for counterfeiting currency

*Establish post offices and roads

*Provide for registry of patents and copyrights

*Constitute lower Federal Courts

*Define and provide punishments for piracy, treason, and crimes against other nations

*Declare war, raise armies, provide and maintain a navy, establish military law, call up militias, and organize them to the extent needed for Federal purposes

*Run Washington DC

*Make laws to do all of this

Did you see how I bolded "regulate interstate and international commerce"?  This is sometimes referred to as the Commerce Clause, Interstate Commerce Clause, or just ICC for short.

It is very likely the most abused clause in the entire constitution, because Congress passes tons of laws that have nothing to do with any of the other powers, but somehow have something to do with interstate commerce.  To help this process along, Federal courts have even ruled that intrastate commerce is really interstate commerce, due to some sort of "butterfly effect" or something.

Really.  A farmer was fined for growing too much wheat, since the Federal government set limits on wheat production during WW2 to drive up wheat prices.  Apparently, Congress didn't think that bread was expensive enough.

The farmer contended that the extra wheat was for his own use on his own farm.  To feed his animals, family, and help.  As such, it never entered commerce at all, either interstate or intrastate.  But Federal courts upheld the fine and the law, contending that the extra wheat that he grew and ate was somehow depressing wheat prices in other states.

This case, Wickard v Filburn (1942), opened up the floodgates for the Federal government to exercise its power over pretty much anything, anywhere, anytime.  All they had to do was say that it affected interstate commerce, and the Supreme Court had more or less defined everything as being somehow related to interstate commerce.

What followed, of course, was a plethora of laws that, in my opinion and that of many others, have squat to do with interstate commerce, and really nothing to do with Congress' other powers, either.  Some are benign or even beneficial, like the Civil Rights Act of 1964.  Others are immensely destructive, like the Controlled Substances Act of 1970.

Aside from Roberts, the other four authoritarian conservative justices were willing to invalidate the law entirely, using the fact that Congress has no such power to force people to buy insurance.  To be sure, such a law certainly has nothing to do with post roads or patents.

Or even interstate commerce, really, since insurance is state regulated and insurance companies are technically barred from doing business across state lines.  I  might even write a lengthy piece in the future as to that second matter.

As much as Roberts might have liked to have joined his conservative colleagues in invalidating a commie sociofascist law, he certainly didn't want to invalidate most of his own power, either.  That would suck for him.  Because doing so would be to overturn decades of precedent of using the ICC to justify almost anything and everything that Congress wants to do.

So he joined the four centrist/liberals, and ruled that Congress damned well could do this.  Under the taxation clause.  This ruling sidesteps any use of the ICC at all, and safely preserves the power of Congress and the rest of the Federal government to do any damn thing they want to.

I was sort of hoping that he'd join the rest of the RATS (TAKS?).  As much as I'd hate to see the Civil Rights Act challenged in court after the evisceration of the ICC, I would have really loved to see the inevitable challenge to the Controlled Substances Act.  Plus at least another third of the US Code.

It would have been tumultuous and entertaining.  It would have clogged the courts for years.  It would have had many consequences, good and bad, intended and unintended.

Ultimately, it would have restored the Federal government to its true scope of power.  In theory at least.

It would have been wild and woolly.  But the Chief Justice of the Supreme Court switched sides to keep it from happening.  At least he's interested in preserving one job.

His own.

That's my theory, anyway.  Makes sense to me.