We’re all still trying to digest what Chief Justice John Roberts just did in providing the crucial fifth vote to uphold Obamacare. I’m pretty sure he’s trying to digest it too.

I do not fault him for bending over backwards to try to find a legitimate reason to uphold Obamacare. Deference to the people’s representatives (even if the people don’t currently like our representatives much!) is part of the basic structure of the Constitution. But if we are to be a nation ruled by laws, not men, words have to have plain meanings. Communication must be possible.

Pres. Obama promised that this mandate was not a tax. In the law, it is described specifically as a mandate, a requirement. The money you have to pay if you decline to buy government-mandated insurance coverage is laid out in the legislation as a “penalty” for failing to do something the government is requiring you to do.

Robert’s decision to redefine the mandate as a tax also raises new questions, as Ilya Somin points out on Volokh.com: if this is a tax what kind of tax is it? If it’s a direct tax on the states, it must be apportioned proportionate to the population of the states. “If it is not an income tax, excise tax, tariff, or impost, it’s not a tax authorized by the Constitution—even if it also isn’t a direct tax

By redefining what Congress clearly described as a penalty as a tax, Roberts may have saved this law, but he has lost something more basic to the rule of law. Truth matters. Lines may get blurry, which is why we need courts, but courts may not creatively reinterpret the plain meaning of a statute. Otherwise the exercise of democracy means nothing. Continue reading →