Chief Justice John Roberts famously defined himself as an umpire in his confirmation hearings. But an umpire is willing to make the toughest calls.
In his Obamacare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law, Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over.
As a result, there's Obamacare as passed by Congress. Then there's Obamacare as passed by the Supreme Court.
Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.
In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn't pass constitutional muster. Obamacare as passed by the Supreme Court didn't pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.
Roberts vindicated the core of the constitutional argument against the individual mandate that had been sneered at by the legal establishment and pronounced preposterous by the likes of Nancy Pelosi. The mandate is unprecedented in that it doesn't regulate existing activity; it compels people to undertake an activity — namely, buying insurance — that Congress then regulates under the Interstate Commerce Clause. This stretches the Commerce Clause beyond the breaking point.
The government's logic, Roberts wrote, “authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”