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.

[zeugma]

The biggest problem with the ruling, is that Roberts ruled for something not requested of the court. The administration was not making arguments about the law being constitutional because the 'mandate' was a tax. I can't tell you how many times I've seen supreme court rulings where the justices essentially say "well, if such and so had been brought up, we could have ruled on it, however since it was not, we cannot."

Further, I believe there is legislative history with the act, whereby it's status as a tax was specifically rejected by congress. Roberts totally abandoned his role as a justice and assumed facts and arguments not tendered.

I still haven't made it all the way through the ruling, concurrance, and dissents yet, but I'm not really impressed with it so gar.

[Kevmo]

“[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. ”
***So it is a tax on the poorest of the poor, those who cannot afford to buy healthcare. We should call it the poor tax.

[gdani]

His ruling killed the commerce clause

It did no such thing. What makes you think it did?

[Kazan]

Now, Romeny has the rallying cry and significant momentum, 3 months before the election That is the best thing about the decisions (and ONLY thing keeping me sane this morning)

So, you're putting your trust in the man that gave Obama the blueprint for Obamacare and packed the courts with liberals in Massachusetts? That is evidence that you have lost your sanity already.

[Kazan]

John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist,

It's hard to take the rest of the column seriously after reading that.

[Kazan]

That is why we must vote for Romney

Why? So, he can replace Obamacare with Romneycare? Or replace Antonin Scalia with another Roberts or David Souter?

[Mr. K]

wtf is wrong with you?

are you not capable of holding a discussion without resorting to name-calling?

[BuckeyeTexan]

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

[katiedidit1]

Absolutely! it was rewritten to include a tax as a way around the interstate commerce clause. Roberts killed us and is a sob in my book. I don’t care how anyone spins it..facts are facts.

[SoFloFreeper]

Uh huh.

[Lady Lucky]

Post of the day!

[raccoonnookkeeper]

Some of it is not bad because it’s downright TERRIBLE!

[SoFloFreeper]

Thanks. I thought it appropro.

[rwilson99]

It’s a new tax... based on income.

Elections have consequences.

[norton]

I respect your opinion.

But keep reading,

The only lemonaide is that Romney now has a cause to rally the troops behind.

Roberts apparently placed image before principle and did contortions to make it work.

He/the court could go that far to approve Obamacare only a week after bending over to determine that formerly sovereign states don't have the "right" to enfore federal law within their borders.

[betty boop]

Remember—[Roberts] never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument [i.e., Commerce Clause reasoning that would obliterate any distinction between "active" and "inactive" market participants] 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.

And thus Chief Justice Roberts drew the limit to Congressional exercise of its powers under the Commerce Clause. In short, Congress now must acknowledge the free decisions of individuals WRT whether they want to participate in any "market," in this case the "healthcare market." It cannot just lump all citizens into some abstract "market" and then compel their participation in that market. This is a huge recognition and defense of individual liberty against encroachment by the federal government. This is now a SCOTUS precedent that must be followed by all lower courts, and also by all members of the Executive and Congressional branches of government.

The Obama Administration's main defense of the ACA was appeal to the Commerce Clause. It argued that all human beings, simply by breathing, were already participants in the "healthcare market," and thus their behavior in that market was subject to legislation and regulation.

Roberts drove a stake into the very heart of this line of thinking. In the process, he upheld the idea of individual liberty under law that is the very heart of our constitutional order; and he snuffed any concept of the American body politic that sees human individuals as anonymous, inconsequential "'atoms" in some abstract Mass Man....

In short, the whole idea of the "General Will" takes a big setback, and the Will of the People, successfully defended here, steps out into the full light of day....

[Anyone wanting a "backgrounder" on the General Will vs. Will of the People issue — representing the basic, mutually-opposed ideologies of the French and American Revolutions respectively — can perhaps find a helpful retrospective here.]

Thank you, Chief Justice Roberts for this pivotal ruling. And thank you for turning up the heat on His Satanic Majesty by forcing him to "call a spade a spade" — the individual mandate is, pure and simple, a relentlessly regressive TAX, one that largely will be paid by middle-income and poor individuals and families.

And thus the Chief Justice comes about as close as good manners and protocol can allow to calling out the POTUS as a LIAR.

On the other hand, somehow I get the sense that Roberts was implying that he'd just as soon leave "political disputes" to the "political branches" of the government — that is to We the People themselves, and their representatives in Congress.

Of course, the political Left wants all policy disputes resolved in the courts, because they can't otherwise get what they want out of We the People and their representatives in Congress.

What Roberts may have suggested is that SCOTUS' mission is to construe and apply constitutional law, not to resolve political disputes. For that's what elections are all about....

Thank you so very much, dear Servant of the Cross, for the ping to this outstanding article.

[C. Edmund Wright]

I am afraid you are very very wrong. The ruling did not really kill the abuse of the Commerce Clause - moreover - the tax based ruling did not have to be part of that ruling. Sorry, Antonin Scalia, Mark Steyn, Mark Levin, Rush Limbaugh - oh, C Edmund - just a bit weightier than whoever this little Townhall chick is.

[betty boop]

Sigh....

We seem to be having a basic "problem of communication" here....

How on earth do you expect anyone to take your "argument" seriously — when you don't bother to explain it? If you have a problem with anything I wrote, please show how it is invalid, based on your analytical logic and experience.

You can't just swagger into a civil public debate and begin the defense of your argument or point of view with the statement — "The ruling did not really kill the abuse of the Commerce Clause" — by asserting that my analysis is "very very wrong." Which is simply to dismiss what I was saying, evidently from your POV that I must be a moron if I disagree with you or Rush or whomsoever.

I listened to Rush's show for one hour yesterday, and didn't catch a hint of your problem. Of course, it is a three-hour show; so maybe I missed the explosive part — that SCCJ Roberts rolled over and died for progressive causes in this ruling.

Or maybe Rush never said any such thing.

Anynoot, in a civil public debate, at this point it is incumbent on YOU to show the defects of my reasoning, which is based on logic and direct experience.

At least, those would be the "rules" in the world I live in.

To put it crudely, in civil debate, ad hominum attack is not a winning strategy. At least, not in the world I live in.

[xzins]

This is a huge recognition and defense of individual liberty against encroachment by the federal government.

My dissent.

Roberts did no such thing as uphold "individual" liberty.

He said that the Fed can tax you and not your neighbor for what you are not doing. That, Sister, is insane.

Betty, you don't like cars, so we’re taxing you, but not your neighbor, for being a transportation deadbeat who makes it necessary for us to run trains. That doesn’t seem to pass the equal treatment requirement to me. Contrary to the argument in this article, it says that you are NOT free to abstain from behavior based on your personal preference. The government isn't ordering you to buy a car under a mandate; it's persecuting you until you do. Some Liberty.

[Revolting cat!]