John Roberts’ Gamble — 2 July, 2012

That John Roberts is one slippery character. One wonders if he isn’t too clever by half.

As recently as Wednesday, liberals had dismissed the Chief Justice as a hopeless partisan; now suddenly he is endowed with the wisdom of Solomon. Conservatives, on the other hand, had been worried about which side of the bed Anthony Kennedy was going to get up on, and then found their quarterback suddenly throwing for the other side. What happened?

What happened was that Roberts, in an opinion shared by none of his colleagues on the bench, decided that what Congress intended to do with the Affordable Care Act was more important than what they actually did do.

To the discomfiture of his liberal colleagues in the majority, Roberts denied the government’s argument that Obamacare’s individual mandate is permissible under the Constitution’s Commerce Clause. Congress has wide powers to regulate interstate commerce, he ruled, but those powers don’t extend to compelling someone to initiate commerce, as in buying health care insurance.

But rather than follow that line of thinking to its conclusion, Roberts confounded the conservative Justices by finding an alternate reason to declare the mandate constitutional: he found it in Congress’ wide powers to tax.

This must have come as a surprise to the Solicitor General, who devoted all of 50 words to the taxing powers in oral arguments before the Court. And to the Congressional drafters of the law, who used the term “penalty” 18 times to describe this enactment, and the word “tax” not at all. And of course, to President Obama, who insisted that ordinary taxpayers (those most likely to pay this penalty) would pay “not one dime” of additional tax under the Affordable Care Act.

In this, the conservative dissenters on the Court are in agreement with the supporters of the law. In the dissent, read from the bench by a visibly angry Justice Kennedy (new conservative hero), they make clear that there are bright distinctions between a tax and a penalty, both in purpose and in legal precedent. They are not synonymous or interchangeable, as Roberts seems to make them.  A tax is meant for raising revenue, although Congress can use it to incentivize desired behavior; a penalty is a punishment for doing something the law says you shouldn’t, like go without insurance.  You can’t, say the dissenters, levy a tax against someone for breaking the law.

And if judicial modesty entails respect for the wishes of Congress, it is worth noting that the notion of calling this a tax was put forward as an amendment, and was defeated handily.  If the Affordable Care Act was written as the Chief Justice asserts, it would not be the law today.

The intellectual contortions that went into affirming Obamacare are a fitting bookend to the anti-democratice machinations that attended its birth.  How did this come about?

The conventional wisdom holds that Roberts found a way to thread the needle between approving the Commerce Clause justification, which would have opened the door to Government expansion without limits, and rejecting the Act, which would have done irreparable harm to the Court’s reputation for impartiality, so essential for our nation’s balance of powers, and so questioned in recent years.

I think there is something more.  Roberts clearly doesn’t like Obamacare, but chose to affirm it in a way that inflames its critics, and may revive the Tea Party groundswell that turfed out the Democrats in 2010.  He essentially invites voters to overturn it, and in fact, may have made it easier.   Regardless of how well the GOP does in November, they are not going to achieve a filibuster-proof majority in the Senate.  But if the individual mandate is enforced by a tax, that provision can be repealed using the budgetary reconciliation process, which requires only a simple majority.

Brilliant.  If it works.

But there are several negatives to this course, totally apart from whether the Republicans can overturn it after the election.  Start with what it does to Roberts’ own position.

With this decision, he has done violence to the intellectual integrity he promised to bring to the role of Chief Justice.  In his confirmation hearings, he memorably promised to be the umpire, calling balls and strikes without regard to the score.  Well, in this case, he not only called a foul ball fair, but gave the home team a home run.  This clearly was a ruling in which the result came first, and the justification for it came afterward.  It is just the opposite of what conservative jurisprudence is supposed to do.

The second issue follows from the first.  If Roberts can make a decision based on the politics of it, then people will believe he can be rolled.  That makes the Court exactly the opposite of the august, impartial seeker of justice that it is supposed to be.  It doesn’t matter that no one knows exactly why Roberts made a political decision in this case.  People on both sides will conclude that the Court is responsive to pressures for a desired outcome, which will only delegitimize future decisions.   This is the result Roberts presumably was trying to avoid.

Finally, there is the dangerous precedent made of the taxing power.  While it may be true that Roberts’ decision established limits to what the Commerce Clause would permit, at the same time he opened wide the doors to what can be achieved under the taxing authority.  Fans of limited government will not be pleased to know that Washington can compel any behavior – even to buy broccoli, to use the famous example from this case’s oral arguments – as long as the penalty for noncompliance is described as a tax.  That makes the potential for abuse even greater, because at least the Commerce Clause argument had to have some sort of commercial conduct underpinning its use.

By declaring a penalty a tax, Chief Justice Roberts has managed to mollify those who thought the Court was ossified into partisan blocs, only to reassure any and all that the Court is willing to put its finger on the scale under the right circumstances.  He affirmed limitations to government power under the Commerce Clause, only to give it free rein under the taxing authority.  And worst of all, he upheld the constitutionality of Obamacare in the nearly-expressed hope that the next Congress will overturn it.

It’s a hell of a gamble.

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