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:
Aug '10
Re: An Act of Great Cunning
The Court's recognition of the ability to tax inactivity is not "new." As the opinion says: "The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution made no so such promise with respect to taxes."
The Constitution does NOT prohibit taxes on inactivity. Period. In order to do that , it must be amended. I don't like the Affordable Care Act. It is wrongheaded and is ironically going to tax young, healthy people most likely to be (or have been) Obama supporters. However, it was an act of Congress, signed into law and the Court has a duty to find it constitutional if at all possible. The Court did so in a very restrained and prudent manner.
The point is that the taxing power can be used to spur economic activity such as buying houses or in this case, health insurance. On one hand it is a carrot, on the other it is a stick but it is the same power wielding both...
Sep '11
Re: An Act of Great Cunning
First off, I'm glad we have heard from you, Professor. It's good to hear your thorough, clear-headed analysis.
I must confess a bit of trepidation, however, in trusting in the cleverness of Roberts' Commerce Clause restrictions. I have little doubt that you have correctly assessed Roberts' motivation. The problem is that judicial progressives won't care about such nuances. In their view, the "fact" that the Constitution is "living" means they will twist Roberts' reasoning into a Gordian knot that no one will want to even try to untie.
What Chief Justice Roberts did was raise the stakes of the election, from the most important in our lifetime to the most important since 1860. If the precedent of claiming Congress' power to tax something we don't do goes unanswered, very little restraint on the State will remain.
Oct '10
Re: An Act of Great Cunning
Valin
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.
The original "bad thing" was the election of Obama and a filibuster-proof majority in the Senate--and the subsequent passage of the ACA. Roberts did an excellent job playing the hand he was dealt.
I suspect that he also considered the consequences for judicial confirmation hearings. If the supporters of one of our two parties decide to elect senators who think the court must be politicized, we might end up with a court that resurrects the commerce clause to justify government intrusion.
The more I watch the constitution play out, even in these dark times, the more I admire the sagacity of the founders.
Nov '10
Re: An Act of Great Cunning
So what’s the spin on Roberts’ going David Souter in the Arizona case?
Oct '11
Re: An Act of Great Cunning
First off, I wish they'd just struck the dang thing down. But there's no denying that they've given the GOP a powerful electoral issue. Also, there is a case to be made that the mandate is really a tax. After all, nobody denies that the feds can give tax credits for behavior they want to encourage. They can knock a big chunk off your tax bill for buying a Chevy Volt, for example. Isn't that just another way of saying that they're charging me extra for not buying one? Whether congress should penalize me for not buying a certain type of car is a political question. How is health insurance different?
May '10
Re: An Act of Great Cunning
Well, this is our Brave New World... Congress can pass a general tax on everyone, call it an "Acting Too Free Tax", and then give waivers to people who behave the way Congress feels they should. You know, for their own good.
Aug '10
Re: An Act of Great Cunning
What Prof. Rahe writes is the only way this ruling makes sense to me. Everyone is focused on the short game and Chief Justice Roberts is concerned with the long game. To me, this ruling limits Congress so that they can't do whatever it wants based on an open-ended interpretation of the Commerce Clause or the Necessary and Proper clause. Upholding it as a tax (which it really was anyway, no matter how it was packaged) is a remainder that it's not their job to stop stupid policy. The tax can always be repealed, and we aren't left with the notion that the government had the right to control health care. That seems a far better solution to me.
Then again, I'm no Constitutional scholar.
Mar '11
Re: An Act of Great Cunning
This statement is simply wrong. A tax on inactivity is a capitation tax which is a practice the Constitution clearly puts limits on.
Mar '11
Re: An Act of Great Cunning
Al Kennedy
Roberto
Clearly. This would have been for the best when this law was being drafted but the usage of Reconciliation to force this down our throats originally rather precluded that option.
If one accepts unjust treatment without firm protest than eventually spectators accept that such actions were justified in the first instance. By blessing this mess with any sort of legitimacy the Robert's Court affirms these tactics.
Nothing good will come of this, in many ways. ·
Roberto, I guess I'm just more optimistic, and lean more to J. D.'s point of view. We have a lot of work to do before November, but I don't think we have lost yet. · 17 hours ago
Well said, there's nothing served by falling into despair and November offers the only realistic hope of correcting this now as you say.
Nov '10
Re: An Act of Great Cunning
If CJ Roberts was not simply, as I believe, turning his coat and running for safety, then believing that his too clever by half scheme will set the stage for a Republican triumph and a reversal of the health care mess is a sign of mental instability.
Look at Stephen Moore's report of the impending highway bill, viz.:
We cannot trust the Republican members of Congress to do a danmed thing. The entire lot ought to be turned out forthwith.
Aug '10
Re: An Act of Great Cunning
Roberto- a limitation is not a prohibition.
Jun '12
Re: An Act of Great Cunning
J. D. Fitzpatrick
Valin
The original "bad thing" was the election of Obama and a filibuster-proof majority in the Senate--and the subsequent passage of the ACA. Roberts did an excellent job playing the hand he was dealt.
I suspect that he also considered the consequences for judicial confirmation hearings. If the supporters of one of our two parties decide to elect senators who think the courtmust bepoliticized, we might end up with a court that resurrects the commerce clause to justify government intrusion.
The more I watch the constitution play out, even in these dark times, the more I admire the sagacity of the founders. · Jun 29 at 11:03am
Maybe you could point out a time when the Court wasn't politicized?
Mar '11
Re: An Act of Great Cunning
Clearly, but it is still a restraint the law must comply with. In this case I rather suspect the PPACA does not do so.