Posted on 06/29/2012 6:06:10 AM PDT by Servant of the Cross
John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist, and the Chief Justice of a Court that is acutely aware – and wary – of its role in politics. Understand that his opinion, though certainly not ideal for the Right, contains more good news for conservatives in its pages than it does on its face.
So let’s take a look at his surprising opinion – the controlling opinion, as it’s called, which sets precedent and “say[s] what the law is,” as Marshall said so long ago.
The Good News
First: let’s give credit where it’s due. Roberts made it abundantly clear that he’s not a fan of the actual policy. Moreover, he shifted responsibility for this policy back to the American people, and revealed his respect for the separation of powers:
Unhappy with the ruling though you may be, the wisdom contained in that paragraph alone ought to cheer you. And I promise, there’s more!
Now then. What hath he wrought?
“Commerce Clause” is everywhere in the news today, and if you’ll recall, that was considered the basis for both upholding and striking down the mandate. Roberts threw out the government’s argument that it could regulate inactivity because of the “substantial effect” abstention from the market would have on the market as a whole. This, he said, was way too much power:
Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity. In so doing, he created a concrete definition of Federal power that will influence the way Congress makes law in the future, and the way the Court interprets future Commerce Clause cases. Here’s the key passage to that effect:
It’s hard to see at first glance why we should celebrate this ruling, especially because it was evidently not enough for Roberts to overturn the mandate. But what Roberts did here was establish a defining limit on the Commerce Clause, which had heretofore not really existed. Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market. Consider, also, the wide array of tools at Congress’ disposal under the Commerce Clause to ensure compliance. Roberts has ruled that Congress can’t criminalize not buying something because of the effect abstention will have on the market. Indeed, that was at issue in this case; the fact that it’s unconstitutional is a win for liberty.
Furthermore, Roberts narrowed the definition of “substantially effects” to encompass activity that is already occurring, and curtailed Congress’ power to presuppose, and then regulate, activity.
Now, think back to the time when constitutional challenges to the mandate first began to surface: every legal scholar worth his salt, conservative or liberal, believed the Court would kill the activity/inactivity distinction. Yet that was the major victory the conservatives won in this case, and it’s now legal precedent. The mandate itself lives on, but Congress may never apply the full force of the U.S. government to compel anyone to make a purchase. This, the fight for the Commerce Clause, was the real war. And the right won it. Perhaps the fruit isn’t ripe yet, but it will prove juicy in time.
So now, to turn to the legal reasoning for why the mandate remains law. In other words…
The Bad News
Here’s Roberts: “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”
You may keep your law, he says. But let me redefine it for you.
In the opinion, Roberts applies a test from an earlier case, Drexel Furniture, to determine whether the “penalty” meets all the requirements of a tax. It’s another long excerpt, but worth reading, as he’s very clear:
So here’s how it’s going to work from now on: the mandate is now just the “tax on not having healthcare,” which I’m sure will get a snappier name in the coming days, something akin to the “gas tax,” or the “income tax,” which most of us pay. Roberts says as much:
So after he invalidated the Commerce Clause justification, he determined that really, the “penalty” doesn’t force participation in the market; hence, why he didn’t throw out the mandate with the Commerce logic. It’s not really forcing people into the market; after all, it didn’t criminalize not owning insurance. It just puts a tax on it, and Roberts notes that taxes are often used to induce certain behavior:
Frankly, this doesn’t look like an expansion of the taxing power. Perhaps he’s articulating more clearly the intent behind so-called “sin taxes,” and other behaviorally-motivated taxes, but he’s not handing Congress more power. He’s just explaining a power they already had, and use.
Remember—he never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and it’s a bad one, and he doesn’t like it, but that doesn’t make it impermissible.
So, is this what the right really wanted to hear? Heck no! We like the dissent, where the whole thing goes. But Roberts is dumb like a fox, and it’s worth looking at the effects this ruling will have on the future, both near and far.
The Upshot
Over, and over, and over, President Obama assured us that this was not a tax. He was not raising taxes on the middle class (that’s what the Republicans were doing, remember?). Nope, says the CJ: ya raised our taxes. Politically, that’s going to prove troublesome for Obama this fall, and in a much more substantial way than having his “signature legislative accomplishment” overturned altogether.
For one, Roberts took away Obama’s ability to campaign against the Court. They upheld his law; he can’t do as he did after Citizens United and construe the ACA ruling as a massively political attack on the little guy and his uninsured plight. He has nothing to blame on the Justices. All they did was recharacterize the “penalty” as constitutional under the taxing power. Roberts robbed Obama of a scapegoat, and stuck Obama with an unpopular law in an election year. Ouch.
Second, Roberts has literally forced Obama to acknowledged that he broke a promise, and raised taxes. And tax increases don’t resonate well with the voters. Now, it’s doubtful Obama will assume responsibility for raising taxes – note that in his speech today, he didn’t acknowledge the Court’s reasoning for the ruling, only that they ruled in his favor. But the GOP has just added a major weapon to its arsenal: want to lower taxes? Then don’t reelect Obama.
This third observation is one that isn’t immediately eminent, but nonetheless just as important as those prior two, if not more so. Roberts has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. As noted above, Americans don’t like taxes. And thanks to the fact that many will opt to pay the tax rather than buy insurance (as that will cost less), the insurance problem in this country hasn’t been solved. The fact that we’ve settled the question of the mandate’s constitutionality means we can turn to the rest of the law, and address the flaws contained therein, and perhaps find a real solution to the healthcare crisis. As for future laws, Democrats lost the ability to hide behind “penalty” language. Roberts saw that the mandate waddled and quacked, and gave it the appropriate name. (He also forbade Congress from actually “mandating” anything, so that name isn’t even correct anymore.) The ACA barely passed the first time; future iterations of this theory are destined to fail, because Congress will have to stand up and say, “We propose to enact a new tax so as to influence your behavior.” If that isn’t the proverbial lead balloon, I don’t know what is.
So there you have it: it’s really not all bad. It’s not what we wanted, but then – as I suspect Obama will learn in the coming months – we must remember to be careful what we wish for.
Even if Romney is voted in the odds of the law being repealed are slim.
I understand this point and reasons to be skeptical of the past behavior of the liberal justices on SCOTUS.
However, remember that by joining the majority, and using his words to write the majority opinion, EVERY word that Chief Justice Roberts wrote, with regard to the Commerce Clause, is in effect concurred with by ALL nine justices (Roberts spoke for all four liberals and the dissenting Justices already threw out the Commerce Clause rationale). Therefore, the rationale defeating the Commerce Clause argument, and narrowing it's use in all possible future cases to come before the Court, had a 9-0 vote.
Adding one single additional liberal to the Court can't change this precedent.
bump for a later read...
That’s great, but what about when they levy a tax on us for not having an electric car? Or a solar powered water heater? Then what?
bump for a later read...
“The Roberts Opinion: It’s Not All Bad”
Sure. And at the end of your free train ride, you get a free shower too! Life is grand, eh?
“the mandate is now just the “tax on not having healthcare,” which I’m sure will get a snappier name in the coming days”
It’s already being called the ObamaTax. Let’s go with that.
By an enormous stretch on the tax issue, Roberts handed the Democrats a totally unnecessary victory.
You’ll never convince the hardcore ideologues but that doesn’t deny the truth of it.
The fact is that Congress has the power to tax income, and they can give a deduction for carrying health insurance.
Wow. I hadn't seen that. Young Kate is stirring the controversy here too, eh? ... as we knew it would (I must have just beat you to posting the thread]
LLS
There is no need to understand Roberts . what he did is all that matters. He effectively re-wrote this law. Judicial activism, anyone.
I give a rats rear about his personal decisions.
Actually we need to play the clips of them claiming it isn’t a tax over and over and over...and end with “The Supreme Court Ruled Differently.” Maybe even caption over them with Lies, Lies, and more Lies...”
Judicial rewriting laws is not conservative.
This is mind rot.
Liberals cry constitution about laws they like and ignore the ones they dislike. We should consider starting to fight dirty .....laws that only apply to our side are inherently wrong!!!
No, it's not just like buying gas or earning income. Those are voluntary acts of commerce. Nobody gets taxed for NOT buying gasoline. Nobody pays income tax for income the DIDN'T earn.
Roberts got it wrong. He couldn't be more wrong if he showed up a funeral for a young child, put on a pink tutu with no underwear and started singing at the top of his lungs "Another one bites the dust..." That is how wrong his thinking is.
The ObamaTax is like charging every citizen a federal property tax if they fail to go out and buy property.
More than a silver lining. I’ll take the temporary affirmation of ObamaCare in exchange for the long-term reduction in Congressional regulatory power under the commerce clause any day of the week.
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