FDR placed Felix Frankfurter on the Supreme Court as a reward for his careful orchestration and development of the legal maneuvers needed to get most of the New Deal through Congress and the courts. Most recently Amity Shlaes described his New Deal sophistry in her book “Great Society: A New History.” His most clever tactic was to label things as taxes rather than penalties or mandates, because the taxing power of Congress was clearly in the Constitution.
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However many years later, somehow this tactic was overlooked by Obama’s acolytes in drawing up the “Affordable” Care Act—or it was an intentional risky set-up to usurp power to augment and broaden the ability for our courts to be more activist in post-passage editing of Congress. Congress can sometimes be careless, so how convenient that after a law’s passage the Court can now dictate, like an all-powerful editor, and say what Congress meant to say!
In the ACA ruling, Chief Justice Roberts acted just like the cavalry in a Western story, and appeared at the last minute to save the day for Obama’s key achievement. Chief Justice Roberts echoed young Frankfurter’s New Deal-creating strategy, and ruled the penalty a tax, even though the actual language within the lengthy law, as confirmed by the Cato Institute, never calls it a tax.
We will long admire Nancy Pelosi’s bold, facts be damned, command, “We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” What a leader!
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So, like the Red Queen in Lewis Carroll’s Alice’s Adventures in Wonderland, who paints the white roses red, Chief Justice Roberts fixed the Democrat Congress’s mistake. Another example is whether 9, or the proposal of 13, the court can be arbitrary or accurate as it chooses. Justice sometimes for some.
P.S. After the Dem-ruled Congress enactment, many have called for its repeal, including Mitt Romney and Mitch McConnell, to name only two, and yet it is still, partially, on the books, and still not working well.
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Image generated by AI.