In mid-December, Judge Reed O’Connor, a U.S. District judge for the Northern District of Texas, ruled that the Tax Cuts and Jobs Act last year ending the individual mandate’s penalty, which is the heart of Affordable Care Act, also made Obamacare unconstitutional without it. Nineteen other state attorneys general joined in the lawsuit Texas v. Azar. This case is likely headed to the U.S. Supreme Court.

But the Supreme Court essentially resolved this question in June 2012 with the same 5-4 composition of the court that now exists, when Justice John Roberts changed sides, ruling that the individual mandate was a tax, not a fine, therefore making it constitutional, a position denied by Democrats previously. But it saved Obamacare. Justice Roberts could be again the deciding vote. If he betrays the original intent of the Constitution, as before, he may again do heavy damage to the Constitution.

Prior to Roberts’ unanticipated vote, Justice Anthony M. Kennedy had been the unpredictable swing vote on the court. Justice Kennedy, not happy with the Roberts’ switch saving Obamacare, said: “The court majority regards its statutory interpretation as modest. It is not.” Then, not hiding his distain for it added. “It amounts to a vast judicial overreaching. It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.” He called it “judicial legislation” and accused Roberts of trying to “force on the nation a new act.”

Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning, which is what Roberts did. George Washington warned in his farewell address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Usurpation, in his day, meant twisting things around to extract meaning that was initially not there.

So what did Roberts twist, or legislate, that changed the National Affordable Healthcare Act (Obamacare) as passed by Congress? At the top of the list, his rewrite called it a tax when Congress never passed it as a tax and the political party passing it, and their president, Barack Obama, emphatically resisted any description of it as such.

Rich Lowry, a political commentator, said it best. “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 short, “Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress” (The Umpire Blinks, by Rich Lowry, The Corner, National Review Online, June 29, 2012).

Judicial legislation or activism is not new. The desire for the Supreme Court to “legislate” through decisions expressed itself more fully the past 60 years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives. By altering legislative law it has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few. In broadening its power base, far beyond constitutional restraints, it has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.

In the National Affordable Healthcare Act the Supreme Court has effectively restrained further encroachment (mutilation) of the Commerce Clause, formerly used to increase its power, but opened wide the interpretive door that the federal government can control anything it taxes. So, does this mean that if the federal government wishes to control free speech, press, assembly, religion, guns, or any other activity, it first simply levies a tax on that activity? Apparently judicial legislation creates a “need” for additional judicial legislation. God help us.

We must return to our foundation, the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document. According to Article I Section I, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” There is no authority for either of the two other branches of government to make law — any law — and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the very limited powers of the federal government. So, even Congress cannot make any law it likes.

The issue of health is not listed and is therefore, as per Amendment 10, entirely a state issue. The Supreme Court majority ruling ignored this long-term clarity and instead chose to violate the document it is charged with upholding.

Judge O’Connor’s ruling rendering Obamacare unconstitutional may give the Supreme Court a chance to return to the Constitution as written. Unfortunately the deciding vote remains again with Roberts, who can’t be trusted constitutionally and so Obamacare could still stand.

Dr. Harold Pease is a syndicated columnist. He taught history and political science from this perspective for more than 30 years at Taft College. To read more, visit www.LibertyUnderFire.org.