An Act of Great Cunning
What did John Roberts have in mind? Under Obamacare, the penalty exacted on those who do not secure health insurance for themselves was, as its proponents argued, a fine, not a tax. This is not a matter of mere semantics. We may tax what people own, and we regularly tax what they do – import goods, earn a living, sell stocks at a profit, and so forth. We do not tax our fellow citizens for what they do not do. To do so would be tyrannical. It would be to assert a power to penalize people through the tax code for minding their own business. Given the debate that took place when the bill was passed, no honest man could think the mandate a tax.
Most conservatives understand this, and they therefore suspect that John Roberts did not have the stomach to confront the President and his party. See, for example, Joel Pollak’s post Did Roberts Give in to Obama’s Bullying? Moreover, there is evidence that the opinion authored by Justice Scalia was originally a majority opinion. Roberts was forced to back off. His was an act of judicial cowardice.
Or was it merely a recognition of the weakness of the judicial branch? After all, the Chief Justice had his reasons. The Supreme Court confronted Franklin Delano Roosevelt, and it very nearly lost its independence. A switch in time saved nine, as they say. Roberts is very much concerned with sustaining the legitimacy and influence of the Court, and Obama and the Democrats have made it clear that they would regard a decision overturning Obamacare as a declaration of war.
There is, I am confident, more to it than this. In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.
At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. He compared the decision to Marbury v. Madison, where Chief Justice John Marshall surrendered in the case before the court while firmly and eloquently reasserting the Court’s right and responsibility to engage in judicial review; and Reynolds pointed to one crucial fact: Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.
Here and there a few commentators have begun to recognize what Roberts did. In a piece entitled Obama Wins the Battle, Roberts Wins the War, Tom Scocca rightly marvels at Roberts’ genius. But perhaps the best discussion is to be found in Ezra Klein’s The Political Genius of John Roberts. “He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation,” Klein writes. “But then he upheld it on a technicality.”
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.”
You should read the whole thing. Klein, who founded Journolist, may be a partisan hack – only the delusional left regards the arguments advanced by Scalia as radical – but Klein is not a complete idiot.
There, let me add, is one other possibility. The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. Were I Randy Barnett, I would file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.
So there are reasons for hope. That having been said, the Supreme Court and Chief Justice John Roberts caved, and if the Republicans do not take the Senate and the Presidency we are cooked. FDR casts a long shadow. The Supreme Court will not defend the Constitution against a determined Democratic Party. This coming election is arguably the most important such contest in one hundred years.
Update: Here is another piece you might want to read.
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Comments:
May '11
Re: An Act of Great Cunning
I didn't read a word you wrote... just wanted to get to the comments section to let you know that I'm delighted to see a post from YOU. Glad you're back, and wishing all my best to you!Now, I'll read what I'm sure are your brilliant observations and insights...
Jan '11
Re: An Act of Great Cunning
I have to admit that after hearing the decision, my first thought was a CofC violation, but my second thought was to hope you had some medicine nearby. I was half-wondering if we could bribe one of the nurses to turn off the TV.
Glad to see you're on the mend.
For the record, my experience is that it's hard to trust in the cunning of a man whose explanation for his decision is so weak. It may be by sheer dumb luck that some of those hopeful outcomes come into reality, but I doubt that was Roberts' design. If his goal was to limit federal intrusion into our lives, he could have done it directly with this decision.
Frankly, I suspect that his attempt to shut down the power of the Commerce Clause was accomplished by allowing the "taxing power" to be even more dangerous. We can ask Roberts the same question about the taxing power that they asked Verrilli about regulation: is there anything that the government can't tax? Is there any limiting principle? Roberts seems to take it for granted, but he hasn't given one.
Oh well. Get better!
Mar '11
Re: An Act of Great Cunning
That's the gist of it. If Roberts did indeed think he was making some grand Constitutional bargain... trading some liberty now for greater liberty down the road... then he's a fool. But I don't think he is. I think he just caved to the pressure. Plain and simple. There is no silver lining here. Liberals only honor Stare Decisis when it furthers liberalism. They chuck it aside otherwise. I hope Roberts wasn't foolish enough to believe that they'd actually honor any limits on the commerce clause today.
May '12
Re: An Act of Great Cunning
First, let me join the community in saying I'm glad your surgery went well and you seem to be recovering nicely.
Then, let me say that I don't regard it as cunning to eschew a clear opportunity to annul a lawless law once and for all, in it's entirety, and with the effect of circumscribing the commerce clause (when 4 justices were already there -- including justice Kennedy...Kennedy!) in order to play some clever four dimensional chess move which may eventually effect some vague, possible, future congressional sausage making.
Romney may very well win in November and perhaps even with a majority in the senate. Let us hope. But let's not kid ourselves either that a failure to uphold the Constitution, in a case this clear, is somehow a brilliant political move that will pay off big time in the future, just wait and see.
Nor lose sight of the fact that this precedent will hinder future movement towards liberty from oppression more than advance it.
Jul '11
Re: An Act of Great Cunning
As far as I am concerned all SCOTUS did today was prove they are unnecessary. If their purpose is to just rubber stamp Congress's stupidies to give them the air of legitimacy then as far as I am concerned we can save money and remove that branch of government. Since the executive branch can enforce / not enforce, kill / not kill, torture / not torture, tax / not tax, deport / not deport, make war / not make war on anything it wants, I am not sure we need to bother with a legislative branch either. Face it folks, we are not a nation of laws anymore, we are a very large banana republic where the government is used by the strong to steal from the weak in the name of the people.
May '11
Re: An Act of Great Cunning
This was the one shot for the people of this nation to remain free.
Congress will repeal this law just as soon as they finish repealing the ban on light bulbs.
Jul '10
Re: An Act of Great Cunning
Sorry, that link in your post-script lost me right off the bat, talking about "non-coercive taxes". If it's not coercive, it is not a tax. That construction is pure Parties of Washington double-speak.
Edited on June 29, 2012 at 1:49pmJun '10
Re: An Act of Great Cunning
The process now reminds me of the faculty meetings I used to endure when I was a teacher. First you get a mandate handed down from on high, something incredibly complex and unworkable from the start. No one is really sure what it means, but you're expected to come up with procedures to implement it anyway. Then the personal agendas intrude until the original intent of the already unworkable program morphs into something unrecognizable. The end result is that teachers spend their time filling out tons of paperwork to stay in compliance with administrative mandates that accomplish precisely nothing. Our healthcare system will soon look like our public school system, and we all know how well that works, right? You don't untie Gordian knots; you take a sword to them. Mitt, you listening?
Jan '11
Re: An Act of Great Cunning
Think about this:
We are being urged to redouble our efforts to elect a man President whose website claims that he will nominate men to the Supreme Court in the mold of Chief Justice John Roberts.
(Look fast, that statement may have been "scrubbed" by now.)
Furthermore, whomever Mr. Romney does nominate will be advised by the Pete Wehners, Vin Webers and Karl Roves to say nothing about his true conservative opinions, even on matters as widely debated as abortion.
Republicans promise fighters but select men comfortable with deference. Republicans counsel their nominees to be cowards, but then wonder why we get Roberts, Souter and Kennedy on the Court.
Litmus tests. Litmus tests. Litmus tests. For every nominee to the federal bench. If a candidate does not have a record as being unwaveringly and publicly anti-abortion, for instance, he or she should not even be considered for judicial advancement by Republicans. No exceptions.
Am I making myself clear?
Jun '11
Re: An Act of Great Cunning
John Marzan
CJ Roberts: Good for Romney, good for the Tea Party, Good for Ricochet. · 10 hours ago
Well, yeah, in the same way Pearl Harbor was very good for US airplane manufacturing and shipbuilding.
I'm all for making lemonade out of life's lemons but there's a point where it is more aptly described as making chicken salad out of chicken [redacted].
Re: An Act of Great Cunning
Roberts' decision tells how far down the path to destruction he thinks that we are. That is quite sobering.
Nov '10
Re: An Act of Great Cunning
So . . . crazy like a fox or too clever by half? You got me.
Sep '10
Re: An Act of Great Cunning
Professor Rahe. Glad you are doing better. I posted the following some time ago. Is this what you are talking about?
Is this how it happened?
Andrew · Aug 3, 2011 at 10:01pm
A lowly senate bill 627 was passed as some type of compromise in the house 218-210 after it had failed significantly in another form.
Senator Reid said it would never get a vote in that form. It did not?
It was amended and passed by the Senate and inserted into s. 365.
S. 365 is passed and signed as The Budget Control Act of 2011.
Is it true that Republicans were suckered into creating an amendable vehicle by passing 627, even though Reid said it would not be voted on in that form?
Someone that knows this process better might help me out.
Nov '11
Re: An Act of Great Cunning
WWDD? What would Democrats do? Ok. Let's have a vote in the House right now. Really cement the tax increase in people's minds. Republicans do not realize that action is the name of the game these days- keep moving while you talk. If you lose, attack again later and never give up. Republicans are too fearful and think too much. Polls have shown a large majority of Americans are against Obamacare. I know, dream on.
Edited on June 29, 2012 at 3:48pmEdited: Haven't read the article, but agree with the title:
http://www.commentarymagazine.com/2012/06/28/lesson-of-obamacare-get-it-passed/
Apr '11
Re: An Act of Great Cunning
Actually, it was "Mission accomplished."
May '10
Re: An Act of Great Cunning
Professor Rahe, so glad you are well and back sharing your wisdom.
Edited on June 29, 2012 at 8:34pmMay '10
Re: An Act of Great Cunning
This is not new precedent, Robert, and the expansive and grasping federal leviathan isn't any larger today than it was yesterday. Read John Hinderaker on this.
We conservatives made our own health care problem. Why? Because it is a subject we wish didn't exist, so we ignored it for 20 years.
Jun '12
Re: An Act of Great Cunning
And gives it to the Taxing powers of Congress...this is supposed to be a good thing? Remember what P J O'Rouke said about giving money and power to Government.
May '12
Re: An Act of Great Cunning
Instalanche!
Aug '10
Re: An Act of Great Cunning
I read the opinion and think Roberts brilliantly structured the opinion the way he did. Roberts has made a concerted effort to decide cases on the narrowest grounds necessary. He has been trying to "de-politicise" the Court by staying away from broad decisions which are judicial activism by definition, whether conservative or liberal.
In the decision he has obtained a majority opinion declaring the mandate unconstitutional under the Commerce Clause limiting what legislation can be passed using the CC. This is significant because CC jurisprudence treated it as a wax nose bendable to justify any spending program.
He has a majority holding the mandate constitutional only under the taxing power naming the mandate what it is. In the future, any other program like this must be brought under the taxing power and will be clearly seen by US citizens as a tax.
The opinion affirms that "elections have consequences" and parties cannot rely on the court to "fix" things. The Roberts Court will defer, to acts of Congress as an expression of the will of the people. The court did that in upholding the Partial Birth Abortion Ban a few years ago and it did it again yesterday.