More Theories on Roberts’ Switch

Former Shelby GOP Chairman Lang Wiseman called my attention to the Volokh Conspiracy blog which has been exploring the Roberts’ decision. Rush Limbaugh also referenced it and Mark Levin looked at the ruling and concluded that Chief Justice Roberts changed his opinion on Obamacare late in the game.

You can follow his reasoning in several articles at

While there’s no doubt that his switch was a disaster for those of us who value freedom, there is no other option than to try to pick out something helpful out of this um, mess. Many of us spent hours and hours of prayers for years on this topic. God may not have appeared to grant us this decision, but we must find a way to fight on.

So this from the Volokh Conspiracy may be helpful:

Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act….

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war….

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds….

This was the first significant loss for the federal government’s spending power in decades….

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce.

I hope the states can do something against this. I hope Gov. Haslam does not meekly bow to the Obama machine. We are hampered by having a Democrat as our Attorney General, but Haslam and the Republican legislature must act.

Of course, the best thing would be to elect Mitt Romney and a Republican Senate. Even then it will be hard and not assured.

Perseverance is a virtue not respected much today, but it must be followed.

... Leave a Reply