A nation of more lawyers, less rule of law

Wesley Pruden

Now the fun begins. Nothing can fire the anger of an American like the arrogance of a government lawyer with his foot on the throat of a helpless citizen, and the justices of the Supreme Court are the government lawyers with the biggest feet of all.

The justices sent a message loud and clear in their decision upholding Obamacare and the requirement that everybody has to buy a health insurance policy, or else. That’s a tax, the court held, and the power to tax is the holiest of holies for any government. It’s the first rule of politics as well.

Chief Justice John Roberts.

Franklin D. Roosevelt, the father of the big government that runs everything today, famously described his four-term success as “tax and tax, spend and spend, elect and elect.”

Some people expected Obamacare to be upheld, but nobody expected it to be upheld as an affirmation of the power to tax. We just weren’t paying attention. Chief Justice John Roberts, author of the majority opinion, is first a corporation lawyer, and a lawyer is always looking out for the client. The U.S. Government is the biggest corporation of all. Twisting, manipulating and torturing the law is what corporation lawyers do, and Justice Roberts is very good at his job. We’re a nation not of laws, as the law-school cliché has it, but a nation of lawyers. Big difference. So who should be surprised?

President Obama, who once taught the constitutional law he seems to know so little of, called the decision “a victory for everyone,” and reached deep into the bowels of his teleprompter for something suitably trite to say. The decision, he said, upholds “the fundamental principle that in America – the wealthiest nation on earth – no one should fall into financial ruin because of an illness.”

The president couldn’t say where that “fundamental principle,” as nice as it sounds, came from, since nothing remotely like that is found in the Constitution. Justice Roberts in his majority opinion said nothing like that, either. “Because the Constitution permits such a tax,” he wrote, “it is not our role to forbid it, or to pass upon its wisdom or fairness.”

The message, writ large between the lines of Justice Roberts’ prose, was clear: “If you don’t like the legislation, change the legislators who wrote the law.” A remedy will be available on Nov. 6 at a polling place near you.

Mitt Romney set the order of battle with the eloquence of simplicity: “What the court did not do on its last day in session, I will do on my first day, if elected president of the United States.” His promise to “repeal and replace” Obamacare is abundantly clear, and as unequivocal as if he had invited one and all to “read my lips.” The pith and pulp of the promise – “repeal and replace” – should be the mantra of the Republicans this year. It’s a word shorter and just as persuasive as Bill Clinton’s famous reminder that “it’s the economy, stupid.”

Despite President Obama’s declaration of victory, Obamacare (a term he detests) is the one achievement he doesn’t want to talk about. The very word “tax” is toxic, and nobody knows this better than the Democrats. Mr. Obama emphatically denied that Obamacare is a tax, telling George Stephanopoulos that he “absolutely rejects” the notion that it’s a tax.

Conservatives who are disappointed that the court didn’t knock down the law for its intrusion into the rights of both individuals and the several states, should resist the temptation to waste their time chasing after a notion of what should have been. Obamacare is a fraud, which Justice Roberts seems to be saying, and the way to correct it lies beyond the power of the lawyers.

Americans have grown soft and lazy over the past few decades, fattened on the notion that the lawyers on the Supreme Court know what’s good for us, that they will see that we live happily ever after, to feed on the soup they make from whatever emanations and penumbras they can find in the Constitution.

The Supreme Court gave Barack Obama his law and his “legacy,” such as it may be, but they gave Mitt Romney and the Republicans a cause beyond price. Running against the tax collector and the biggest tax increase in history should be so easy even a cave man could do it.

Wesley Pruden is editor emeritus of The Washington Times.