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.

[semantic]

Slowly but surely, people are waking up to the gift that Roberts bestowed.

1. His ruling killed the commerce clause - yeah, the one with -0- oversight and 100% discretion of the executive and/or cabinet chiefs
2. His opinion forced the recognition that all future legislation is based solely on the power to tax.

For those who wanted a supreme leader (gee, the desire runs in both Rs & Ds) to crush the O-Tax by fiat, it's a bitter disappointment.

But for those who understand that taxes are literally a quagmire where political careers go to die, it's a godsend. There's a reason the Bush tax cuts are called the "Bush Tax Cuts" - tax policy is a key electoral factor.

Also, some are beginning to realize that taxes must be evenly applied ie are subject to equal protection. If there are exceptions/exemptions, like the EIC, it must be based on some underlying basis, as in income under the XVI.

Nowhere in the O-Tax are the taxes actually spelled out. Are they a poll tax, property tax, income tax or whatever tax? Can anyone other than Alberta's Child see what's gonna happen in this arena? Litigation dear reader.

In fact, what if anyone with standing sues on the basis that the tax is a poll tax and the court agrees (in the absence of any countervailing evidence). If Congress doesn't go back to reform/revise the definition, the actual tax construction (not power) of O-Tax is unconstitutional on its face. Congress simply has to do nothing, and the thing dies.

[LowTaxesEqualsProsperity]

There is a difference between a tax deduction for what you do and a tax for something you don’t do.

[vpintheak]

Bull, bull, and bull! He could have killed it and wrote all of that into the decision along with the conservatives in the court. Instead, he Ed kill
America as we know it!

[reformedliberal]

It is not optimism on my part. I am just stating the obvious in the prior and many other posts yesterday and today.

I have also been around for a long time. The difference is, I never expected a pony and I do not dig through manure trying to find one.

We are worse off because most expectations, like assumptions, are usually unreasonable. We take what is and deal with it as best we can. We are the ultimate sovereigns in this country. It is not an easy job. We simply have to prioritize and take the steps necessary to establish our sovereignty. It has been this way since the founding, which was not easy, unanimous or permanent.

[Servant of the Cross]

Or moan and groan and wring your hands and predict ultimate inevitable defeat because Daddy didn’t punch out the bully’s Daddy.

I think that is a very clever and appropriate analogy. 'Like'.

[Poison Pill]

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

Ah. So if 49% of the public wants to follow the dictates of the Constitution, but 51% don't, it's not the job of the Court to rein in the over-reaching 51%? That's great. When the para-military IRS 2.0 is standing on our necks, we can all give thanks the the Commerce Clause is well in check.

[LowTaxesEqualsProsperity]

Roberts crossed out the word “penalty” that appears in the law 15 times (and if it’s a penalty, it’s not a tax, as decades of court precedent establish) and rewrote “tax”.

He rewrote the law. That is judicial activism. Judges interpret, not rewrite, laws.

He is a total traitor and no conservative. This is lipstick on pig stuff and, as an attorney who studies constitutional law, I believe this article is nonsense.

[Pollster1]

Actually, it is all bad.

[dfwgator]

He rewrote the law. That is judicial activism

BINGO! It was unconstitutional as was, and Roberts with his magic pen suddenly made it constitutional. THAT IS NOT HIS JOB!!!!

[norton]

Fine, Roberts is a hero of the Republic for opposing the commerce clause while redefining "reform" as a tax.

My first question is how does handing congress a new means of passing stealth taxes add up to a silver lining?

My second question is, since Roberts could have denied the commerce clause without reinterpreting the ability to tax... what motivated him to flip?

Third, why add "It is not our job to protect the people from the consequences of their political choices.”...are we being punished?

The whole idea of collecting money from those who don't buy or earn health insurance is a sick joke - they aren't paying taxes now! Does anyone think the fed's will withhold the unearned income credit from "poor folks" who can't afford insurance premiums?

If they can create a tax with smoke and mirrors it will only take a single rider to a defense bill to make that tax apply to the middle class at large - those of us already paying the costs of a welfare state.

Finally, how could he add "...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.” where did he find a free pass in the legislation?

(End of rant)

[Parmy]

Ping for later.

[NCLaw441]

You posted: There is a difference between a tax deduction for what you do and a tax for something you don’t do.
***
There may be a distinction, but the net result is a change in your tax liability, based upon not acting in a certain way. Whether it is by tax increase or deduction decrease, if failing to act in a government approved manner increases one’s tax liability, the result is the same.

[Servant of the Cross]

Roberts is a hero of the Republic for opposing the commerce clause while redefining "reform" as a tax.

IMHO, neither the author nor I suggest that hyperbole. The title of the article itself ... It's Not ALL Bad ... is clear that there is MORE BAD than good in the ruling, but then getting past that to make lemonade out of lemons.

[Lady Lucky]

Dear SFF, the net is overloaded today with arguments against the reasoning therein, and I have places where I get paid by the word. Furthermore, Rush Limbaugh is far more entertaining and his arguments are rock solid, so I’d put him at the top of the list of commentators to read on this subject.

www.rushlimbaugh.com

[NCLaw441]

I don’t think the opinion killed the Commerce Clause, but it has at least stopped its cancerous growth, I hope. Legislation will still frequently state that it is based on the Commerce Clause power, and it will withstand challenge on that ground.

[Jumpmaster]

Regardless, 5 to 4 majority raises importance of throwing the leftist bums out and putting conservatives in place. I have no doubt Obama would nominate Holder for the next SC vacancy.

[NCLaw441]

I don’t think the opinion killed the Commerce Clause, but it has at least stopped its cancerous growth, I hope. Legislation will still frequently state that it is based on the Commerce Clause power, and it will withstand challenge on that ground.

[HIDEK6]

Bump.

[MEGoody]

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...”

Agree. Now if the Pubbies will only do that.

[yuleeyahoo]

Too many people can't see the forrest for all the trees in their way.

This is no longer about Obamacare. This ruling proves that there is now, no branch of the federal government that will protect the Constitution. They all have nothing but contempt for the Constituion and the law abiding, tax payers of this country.

SCOTUS has decreed that there is no limit to the power of the Government. It has the power to literally force you to do anything.

R.I.P. The American Republic 07/04/1776 - 06/28/2012