OHATCHEE, Al., June 29, 2012 — The Supreme Court was mistakenly seen by conservatives and liberals alike as the arbiter of the end of the Obamacare debate. The Court would either declare the PPACA “constitutional” or “unconstitutional,” and that would be the end of the story. Perhaps as punishment for our laziness, we were given an unexpected verdict.
Chief Justice John Roberts, why did you do it?
Across the American political spectrum, the reactions to the ruling were both immature and premature.
Some liberals, like DNC Executive Director Patrick Gaspard did via Twitter, lost no time in guffawing, “it’s constitutional. B**ches.”
Some conservatives, like Representative Justin Amash (R-MI), immediately mourned that the “Supreme Court missed an historic opportunity to rein in the federal government.”
Other conservatives vented their frustrations throughout the internet, labeling Roberts a “traitor,” a “coward,” “Chief Just Sith Roberts,” and even going so far as to compare the Supreme Court judge to convicted child sex offender Jerry Sandusky.
Then a few of us decided to actually read Roberts’ majority opinion and discovered, much to our humiliation and bewilderment, that the gloating and outrage were both fairly inaccurate.
Judge not the judge too hastily. Beneath the veneer of a disappointing decision is a masterful (even witty) document that says more about limiting federal government than upholding Obamacare. Roberts is no coward. An overanalyzing nerd, perhaps (I can relate), but not a coward or a fool - and certainly not a liberal.
Let me preface this dissection by saying that constitutional law is not for the impatient or faint of heart. Extreme patience and foresight are qualities needed to understand or work effectively within the U.S. judicial branch. Knee-jerk reactions will do nothing positive for a citizen observer, much less for a Chief Justice, whose diplomatic role is to keep Court priorities organized.
Scholars have plenty of theories to explain Roberts’ decision. Perhaps he caved under pressure and changed his mind at the last minute to save the Court’s apolitical reputation, or perhaps he is playing an elaborate political game. Or maybe the youngest Chief Justice since John Marshall, after sitting on the Court seven long years, is suddenly starting to worry about his career legacy.
These speculations are interesting, but they miss the point.
“We ask only whether Congress has the power under the Constitution to enact the challenged provisions,” Roberts writes for the Court. “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.”
Is that placing some twisted propriety over justice? Not necessarily. We have to be careful about what we truly ask for when we demand “justice.” Roberts handed us justice when many Americans wanting freedom from the burden of Obamacare were actually hoping the Supreme Court would grant mercy.
To Roberts, the most pressing issue for the Court was not stopping Obamacare (which is ultimately the fault and responsibility of the American electorate), but protecting the American people from future socialist interpretations of the Commerce Clause, and protecting their states from overreaching federal government. By allowing some latitude for the Individual Mandate, he ironically proved President Obama to be either naive or deceitful.
What about that Individual Mandate, anyway? A friend of mine in law school told me weeks ago that Obama might as well outright enact a tax for the whole shebang.
Through the Chief Justice’s eyes, Congress shrewdly enacted a tax in disguise:
“Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’ See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).”
In other words, as a meme making the rounds of online social networks sums it up, “Obamacare isn’t a tax. It’s 21 new taxes totaling more than $675 billion.”
It’s an absurd mess, but alas, our Constitution can’t save us from every kind of stupidity or sin. Congress’ power under the Taxing and Spending Clause is stretchy.
“If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce,” reads the opinion of the Court, “perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.”
Roberts explains that the Constitution actually does not allow a citizen to escape taxation by inactivity (“a capitation, after all, is a tax that everyone must pay for simply existing”), and that while the Court holds that we are protected from federal regulation by simply abstaining from regulated activity thanks to the Commerce Clause, “from its creation, the Constitution has made no such promise with respect to taxes.”
To bolster his point, Roberts quotes Benjamin Franklin’s November 13th, 1789 letter to M. Le Roy, “Our new Constitution is now established…but in this world nothing can be said to be certain, except death and taxes.”
Observing that taxes have often been used to influence behavior indirectly (come to think of it, tax credits and cuts work that way also), Roberts writes that “[u]pholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”
Ever the historian, Roberts explores the taxing power precedent through historical examples (I like the one about James Madison opposing Congress’ 1796 tax on carriage ownership), and offers this hypothetical as a counter to the dissent that the Individual Mandate is not written as a tax:
“Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a ‘tax,’ a ‘penalty,’ or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word ‘penalty’ to describe the payment. Interpreting such a law to be a tax would hardly ‘[i]mpos[e] a tax through judicial legislation.’ Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.”
Whether correct or incorrect, this perspective is not outlandish, and it theoretically limits the Individual Mandate. As opposed to giving into the Obama administration’s primary argument and saying the “Federal Government can bring its full weight to bear” and “command individuals to do as it directs,” the Court insists that “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.”
Is that good enough? “We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose,” says the Court. “But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice. The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Basically, Roberts concluded that the PPACA is not a criminal, police state statute, but rather a shrewd tax that voters should accept or reject at the ballot box.
The tradition of judicial review requires that the Supreme Court thoroughly examine any and every possible way in which an act of Congress might be constitutionally acceptable before deeming it unconstitutional. But that doesn’t mean the Court can be a pushover.
“Our deference in matters of policy cannot, however, become abdication in matters of law,” writes Roberts, who goes on to quote from Chief Justice Marshall’s Marbury v. Madison opinion, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”
A key to Roberts’ defense of federalism can be traced back to then-Senator Barack Obama’s apprehension of the new justice in 2005. When Roberts was confirmed by the Senate, Obama expressed his disapproval of Roberts’ judicial record, followed by these sappy lines:
“In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.” (Emphasis mine)
Yes, Obama had high hopes of change for our Commerce Clause. He went on to say of Roberts, “I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes.”
Perhaps Roberts took that reluctant blessing to heart. Most of his majority opinion – the new law of the land – is dedicated to devastating the Obama administration’s ideological bullying.
While Roberts acknowledges that the Commerce Clause has allowed for some adaptations throughout the ages, what the Obama administration wants to get away with is unheard of:
“Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product. Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s action. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 25) (internal quotation marks omitted). At the very least, we should ‘pause to consider the implications of the Government’s arguments’ when confronted with such new conceptions of federal power. Lopez, supra, at 564.”
Roberts proceeds to make a distinction between the constitutional powers of regulation and creation, and explains that as far as commerce is concerned, Congress is only given power to regulate.
If “regulate” meant the same as “create,” it wouldn’t be necessary for the Constitution to enumerate, for example, the power to “coin Money” alongside the power to “regulate the Value thereof.”
“The individual mandate, however, does not regulate existing commercial activity,” the Court declares. “It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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.”
“Every day individuals do not do an infinite number of things,” Roberts continues. “In some cases they decide not to do something; in others they simply fail to do it. 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.”
Roberts criticizes the Government’s logic by applying it to the 1942 case of Wickard v. Filburn, in which the Court upheld Secretary of Agriculture Claude Wickard’s power through Congress’ Agricultural Adjustment Act of 1938 (amended in 1941) to penalize Ohio farmer Roscoe Filburn for growing more than his allotted share of wheat and keeping the excess to himself instead of giving it to the Department of Agriculture.
“The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce,” writes Roberts. “The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do. Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem.”
Roberts offers the problem of imbalanced diet, noting that data indicates the failure to maintain a healthy diet increases national health care costs more than failure to maintain health insurance (remember when Mike Huckabee said that we have a health problem in America, not a health care problem?). Following the Government’s logic, regulating the American diet through the Commerce Clause would be a dandy solution.
“That is not the country the Framers of our Constitution envisioned,” Roberts rebukes. “James Madison explained that the Commerce Clause was ‘an addition which few oppose and from which no apprehensions are entertained,’ The Federalist No. 45, at 293.”
No matter what the size of the economy may be, Congress’ power to regulate commerce has definite limits.
“The Government’s theory would erode those limits,” explains Roberts, “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 (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.”
Earlier in Roberts’ opinion, on the topic of the ballooning Federal Government’s need to have each of its actions authorized by the Constitution, there appears this snippet on the rights of the States: “The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act.”
This is why Mitt Romney’s signature health care legislation in Massachusetts (whether good or bad) is not unconstitutional under the U.S. Constitution.
What about the Federal Government’s idea that the uninsured are “active in the market for health care”? Roberts says, “that concept has no constitutional significance. An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense.” Roberts also notes at this point that Court precedent recognizes Congress’ power to regulate classes of activities, but not classes of individuals.
Under the Necessary and Proper Clause, Roberts gives the Individual Mandate the same excoriating treatment.
When it comes to the issue of Medicaid Expansion, Roberts finally takes the lead to strike down a part of Obamacare as “unconstitutional”. “Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system,” says the Court.
The States, as sovereign entities, must have the liberty to choose whether or not to participate in this federal project.
Roberts concludes, “The Court today limits the financial pressure the Secretary may apply to induce States to accept the terms of the Medicaid expansion. As a practical matter, that means States may now choose to reject the expansion; that is the whole point.”
This is just a sampling of how Roberts wrote the Court’s law of the land – and he actually talked liberal justices into signing onto it! This federal-government-limiting precedent is binding throughout the United States, and Roberts added extra weight to it by eliminating all suspicions of partisanship.
By invading the left wing of the Court, Roberts was able to dominate and change the narrative. Roberts’ conservative majority opinion and the extra conservative dissenting opinion of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito are what get all the attention. The liberal opinion, although not unimportant, seems to have been effectively muted.
Scalia, Kennedy, Thomas, and Alito actually concurred with Roberts’ judgment on the Commerce Clause, the Necessary and Proper Clause, and the Medicaid Expansion issue. It was when Roberts agreed to take the Government’s alternative tax argument seriously that he lost their support.
This leaves us with a puzzling technical scenario that I’ll try to simplify with a little Council of Elrond drama: Roberts mostly agreed with his fellow conservatives on the Court, but while they were poised to take out this omnibus ring of power now (“What are we waiting for?”), he decided, much to many Americans’ chagrin, that its taxing nature is beyond the Court’s authority (“cannot be destroyed by any craft that we here possess”) and can only truly be unmade in the chambers where it was wrought (Congress and the White House).
The quest to do so is the citizens’ prerogative to accept or abandon.
Years ago Nancy Pelosi beamed that the PPACA had to be passed in order for us to see what is in it. That Trojan Horse was then rolled through Congress, through the White House, and finally up the steps of the Supreme Court.
Chief Justice Roberts returned the favor.
But since the PPACA advocates scarcely read their own piece of legislation, they probably didn’t read Roberts’ opinion either. In mob-mentality fashion, they see that four of their own kind appeared in the majority vote plus the word “upheld” and rejoice that the highest court in the land has put conservative opposition to flames.
They fail to realize that the sparks and flickering they see is Roberts trapping them in a ring of fire.
The PPACA was not ruled completely constitutional, and the Individual Mandate was not ruled constitutional in the way the Obama administration had planned. The law of the land now publicly exposes President Obama as having orchestrated the largest tax hike in American history during a recession when the nation is trillions of dollars in debt – after promising he wouldn’t do so.
The energized opposition to Obamacare reminiscent of the 2010 midterm elections has been reignited. The Tea Party movement’s key rallying cry is “Taxed Enough Already,” and now the Supreme Court has warned that there is a giant tax hydra on the loose. Within 24 hours of the ruling, Mitt Romney’s presidential campaign raised over $4 million.
But while disabling socialism and wounding Obamacare, why didn’t Roberts go for the glory and slay the Leviathan while it was in his hands to do so?
Chief Justice stepped aside to let We the People do the honors.
Amanda Read is an unconventional scholar, a Southerner without an accent, a Christian who hasn’t been a churchgoer in 17 years and a college student who lives with eight younger siblings. A writer and artist, she blogs at www.amandaread.com and is the author of the historical drama screenplay The Crusading Chemist. Amanda is majoring in history and minoring in political science at Troy University.
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