The Roberts Opinion: It's Not All Bad

Townhall.com ^ | 6/29/2012 | Kate Hicks

[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:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

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:

“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. […] Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

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:

“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. […] The Government’s theory would erode those limits [on the Commerce Clause], permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 9 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”

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.

“The proposition that congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. […] But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce.”

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:

“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance… Second, the individual mandate contains no scienter requirement [i.e. it’s not punitive for breaking the law]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.”

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:

“[A]ccording to the Government…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

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:

“But taxes that seek to influence conduct are nothing new. […] Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise money, but to encourage people to quit smoking. […] That Sec5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.”

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.

[Nervous Tick]

>> The problem is, the Roberts “precedent” will bind the liberals for about seven seconds. Less if they invest in high speed shredders.

Yeah, that’s “it” for me too.

Roberts could have made all these clever points and STILL invalidated the law right now by voting with the conservatives... and that precedent WOULD have a meaningful dampening effect on the left trying to pull this stuff in the future.

[Baynative]

Although she is saying Roberts has opened some doors for us as citizen voters, I don't have much faith in our ability to act on it. While polling showed that 69% of us don't favor the health care act, we all know that more than half of America thinks they just got a huge gift from President Obama.

If we don't get very busy and elect majorities in congress and then stay busy and pressure them to act responsibly to correct our course, we are headed for a socialistic disaster.

I fear we may already have passed the point of no return.

[reformedliberal]

Since that sort of political choice ALSO violates the First Amendment, I doubt he would have been fine with it.

Any brute force ruling against zerOcare would have been quickly turned against us, since emotion rules the Left. They would have loved it and turned the sledgehammer back on us with the usual force multipliers.

Conservatives are about reality, self-sufficiency and independence. So, can everyone just stop the drama, look at what exists and go on from there?

I have read, over eleven years on this forum, hosannas to one or another politician who was supposedly the one that was going to save us. I have been flamed by putative puffed-up patriots with principals when I usually warned against investing any human being with such powers. And, usually within six months to a year, the annointed savior would then act in a manner inconsistent with the adoration heaped upon them, resulting in such logical pronouncements as “They are dead to me.”

No one is going to save anyone else. No one is consistent. We are all human. We can’t even agree among ourselves to forgo partisanship in order to gain advantage. We either work together with cool heads and a firm goal in mind, or we will be individually and collectively subjugated.

In this case, Roberts handed us some gifts, but on a dirty platter. So, what do conservatives do? Why, reject the gifts, the clear advantages, and throw them back in his face along with the offensive platter and heated epithets.

Tell me again why we usually lose?

[NCLaw441]

You posted, in part: 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.
***

We do get taxed for failing to do certain things, and have for a long time. If we fail to take advantage of any number of tax deductions by, for example, not giving to charity, or not buying a home, etc. etc., our tax liability is increased. I am sure that there are many other examples, but these are enough to prove the point— unfortunately.

[illinifan]

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?

That's what the CJ meant by his comment that they were not opining on the soundness of the act. Elections have consequences. At least in theory any Congress wanting to enact a "tax" on not having an electric car or solar powered water heater would have to present it as such. Hopefully an informed citizenry would keep them in check. If we don't want a tyrant - whether it's our guy or the enemy's - we better all get involved.

I sent my sister away with her hands over her ears and shaking her head like a little kid yesterday when I tried to make her face up to what this law really means. No more miss nice guy trying to keep the family peace. We all have a job to do - now go pay your tax!!!

[Proud_texan]

Sadly you are absolutely correct.

[reformedliberal]

Romney (and I am not a fan) has made a clear distinction between what is done within the laboratory of the States and what is coerced by a Central Authority.

[biggredd1]

A silver lining, the Tea Party rises up....Romney/Palin 2012 !!!

[calex59]

It is not our job to protect the people from the consequences of their political choices.”

BS. It is EXACTLY to job of the SCOTUS to protect us from out of control politicians who pass unconstitutional laws. If not them, then who? What else is the Supreme court for it not to strike down unconstitutional laws? What he is saying in that sentence is that politicians can pass any law they want and SCOTUS doesn't have to rule them unconstitutional, even though they are,simply because it is the voters fault for voting them into office. What convoluted reasoning for screwing the American people. There is NOTHING good about his decision and, in fact, it doesn't make since. He contradicts himself and says we can be made to do anything as long as a tax is tied to it. He disregarded the fact the bill didn't call the fine a tax, and he disregarded the fact that the "tax" originated in the Senate, a move that should have gotten the law tossed on its own merit.

Your whistling pass the grave yard, wake the f*** up.

[chrisnj]

I think the analysis makes sense -
Roberts is fighting strategically. If he gave obozo a straight defeat, he would have handed obozo a scapegoat and all the obots will cry foul against Roberts and come out to vote for obozo;
it appears that Roberts’s ruling on the Commerse clause and the taxing power of congress is in accordance with the Constitution. He might not like congress’s extended taxing power to influence behavior, but he is not the one to protect people from the bad policies of politicians they vote into power. It is up to voters to avoid bad policies by removing the bad politicians.
So his ruling in effect paves the way for us to reppeal this obozocare monstrocity -
1. energize voters to vote out obozo and Dems by exposing obozo/dem’s lies (it is really a tax to influence behavior!)
2. since it is a tax it will be easier to repeal it - it has to originate from the House and it only takes 51 senate votes!
3. once and for all put the ‘commerce clause’ in its place!

In summary - the ruling gives us enough shock to -
vote out obozo; keep the House; gain seats in the senate; vote to repeal obozocare!

This way Roberts himself does not have to face the wrath of the obots (he knows it is much easier to face our wrath than the obots’!)

[Lazamataz]

Nossir, the news is all bad. There is no silver lining.

Here is my take on this.

[Servant of the Cross]

The ObamaTax is like charging every citizen a federal property tax if they fail to go out and buy property.

I agree. As stated by the author, this decision ... has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. No future appellate court can any longer find this socialist monstrosity constitutional. 0bamaTax has been unconsitutionally applied. So there will be a whole new set of state lawsuits very shortly.

Just think of the > 1,000 0bamacare waivers. Now that it is a "tax", these "waivers" are capricious, unfair and inconsistent. Every entity in the country who does not have an 0bamacare waiver can sue 0bama for his unfair taxation. Tea Partiers unite!!!

Now that's a winning legal proposition with lasting comprehensiveness. Here's Ken Cuccinelli (VA Attorney General) who filed the first State lawsuit against 0bamacare .....

Victory in Defeat (The Va. Attorney General see's a silver lining)

[reformedliberal]

The House has already drafted a repeal. We need 51 Senators to pass a reconciliation bill that rescinds the tax. The odds are not that bad.

If that fails, the States have options that the GOP Governors have decided to use, if they need to, after the election.

After implementation, there will be ample opportunity to sue under a variety of issues from violation of the Equal Protection Clause to grave harm resulting from the law.

Vote. If you live where fraud is rampant, get certified as an election judge. Refuse to pay the tax under civil disobedience and put your ass on the line.

Or moan and groan and wring your hands and predict ultimate inevitable defeat because Daddy didn’t punch out the bully’s Daddy. That will certainly accomplish a great deal.

[Sirius Lee]

If we fail to take advantage of any number of tax deductions by, for example, not giving to charity, or not buying a home, etc. etc., our tax liability is increased.

No, those are deductions on a tax that only exists if you actively engage in the commerce of earning wages or playing the stocks. A deduction on a tax on activity is nothing at all like a tax created specifically to punish inactivity.

This is a punitive and direct tax, not a deduction on a voluntary tax.

[Proud_texan]

I appreciate your optimism and perhaps it's only the weight of many years that prevents me from digging through the barnyard refuse to find the pony.

I dug for many years. I never found the pony and we are certainly very much worse off than we were when I started digging.

[reformedliberal]

In a way, they already do.

You can get tax credits for complying with their social engineering. Not complying forfeits the credit and so, you pay more taxes for not doing what they want.

The precedent is set. They cannot use the Commerce Clause to tax. A tax must be plainly stated as such, apply to everyone AND can be rescinded by Congress and/or refused by the States.

All the what-ifs cannot change the precedent. Since litigation can be brought once the the law is implemented, there will eventually be voluminous case law, as well. Statists have elevated case law and precedent above the Constitution, per se. This ruling bites that in the butt.

[SoFloFreeper]

Did you read the article? If so, what are your arguments against the reasoning therein? If you didn’t read the article, please do so—it makes some pretty good points.

[SoFloFreeper]

Did you read the article? If so, what are your arguments against the reasoning therein? If you didn’t read the article, please do so—it makes some pretty good points.

[Mike Darancette]

The Democrats wanted healthcare powered by unicorns and were given healthcare powered by swine.

[PubliusMM]

Or, some great analysis of the sophistry that is Roberts’ contribution, as the case may be.
Roberts comes across as just another educated idiot in all this. The mental chicanery he has employed to reach his ‘studied conclusions’ is (sadly) laughable.
The Founders were men of simple language but great thought. Roberts has firmly positioned himself outside their sphere as a man of simple thought but good grammar.

Sorry...I’m not buying into the silver lining BS.