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:
Re: An Act of Great Cunning
Wow. That's a mildly cheering reading of what was, until I read your post, a pretty depressing day.
On the other hand, let's keep our eyes on the Big Picture: Professor Rahe is recovering with his brilliance and vigor intact. We are going to be all right.
Apr '11
Re: An Act of Great Cunning
From Hot Air today:
" The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before. In fact, the conservative opinion today specifically mentioned Article I, section 7 at one point while raising no objection to Reid’s sleight of hand."
So it doesn't really matter anyway. There is no basis for such a lawsuit.
http://hotair.com/archives/2012/06/28/say-doesnt-the-constitution-require-tax-bills-to-originate-in-the-house/
Edited on June 29, 2012 at 3:14amRe: An Act of Great Cunning
ParisParamus: Dear Professor Rahe: hope you are on the mend.
I just want to toot my own horn a wee bit and point out that I was correct: be it in Massachusetts or nationally, the only difference between a mandate's penalty and a tax is...well, semantics, a/k/a bupkis! I hope this makes you send more to Romney's campaign to get rid of this thing since SCOTUS agreed with me. · 42 minutes ago
You accord Justice Roberts' opinion as a judicial opinion a respect that it does not deserve.
Feb '11
Re: An Act of Great Cunning
Professor, thank you for this post- and I also hope you're feeling better and are on the mend.
Earlier I happened to see the headline that Obamacare was upheld and I've spent the rest of the day fuming. Tonight I was finally able to sit down at the computer- and your post happened to be the first in-depth item I read about the decision.
I feel a lot better. I'm especially happy to see that bit about where tax increases must originate.
So- thank you for brightening my evening.
EDIT: And then wmartin made me feel bad again.
Edited on June 29, 2012 at 3:26amMay '10
Re: An Act of Great Cunning
I am glad you are posting and hope you are on the mend as well and all went well.
May '10
Re: An Act of Great Cunning
Agree with Dave --
Worth saying again:
One more time:
Jun '12
Re: An Act of Great Cunning
Well said.
I get the impression the good Doctor is trying to make a silk purse out of a sows ear.
OTOH it has sparked some good conversation...and I'm putting that in the Positive Column
Edited on June 29, 2012 at 3:28amRe: An Act of Great Cunning
For the record, I agree with those who are not all that sanguine. There is reason for hope. But if we lose this election, or if Romney and the Republicans betray us (which, in my opinion, they are very apt to do), we are cooked. This decision is a sign that Roberts is not willing to take on the Democrats. The Court for the time being is their instrument against us, not our instrument in defense of the Constitution. If Romney rises to the occasion, that might change. But how often do old dogs learn new tricks?
Jan '12
Re: An Act of Great Cunning
Are you positive this matches the legislative history? The law does contain actual tax increases (e.g., payroll, medical devices, etc.) so there's no natural reason to suspect such an obvious foot-fault would be in the law. And if it were, I'm sure we'd have argued that before the court, too.
[Update: I see that point's been made in the Hot Air post linked above as well.]
Edited on June 29, 2012 at 3:33amRe: An Act of Great Cunning
I will try to post tomorrow on my operation. Do not read the post if you are at all squeamish. Major surgery is no picnic, and to give you an honest picture of what I am going through I will have to describe aspects of our bodies that one does not ordinarily discuss. Still, these things may be worth knowing.
Apr '11
Re: An Act of Great Cunning
It would seem very dull- witted partisan even political for Roberts to have done the right thing. Too bad he has concerned his work with how it will seem to others. Not genius but too smart by half and really stupid!
Aug '10
Re: An Act of Great Cunning
Professor, Nicely said!
Now that the penalty is ruled a "tax" by the Supreme Court, doesn't that make it subject to Article 1, Section 7 [1] which requires that bills that raise revenues (taxes) originate in the House of Representatives. Didn't the penalty, now a tax, originate in the Senate? Wouldn't that mean that the ACA became law in a manner that is not allowed by the U.S. Constitution?
[Update] My apologies. This was raised above and answered.
Edited on June 29, 2012 at 3:45amOct '10
Re: An Act of Great Cunning
ParisParamus: How can a more narrow interpretation of the commerce clause be anything other than semantic in view of this Opinion? What is in the { } of government action that is barred by The New Improved Narrowed Commerce Clause that's not permitted by the taxing power? Isn't this a just a shell game? · 42 minutes ago
Edited 35 minutes ago
This discussion is going on over in comments under the Ezra Klein article professor Rahe linked. here's a comment by ffrey63 that I copied:
"If you are overweight, the Congress cannot force you to join Weight Watchers under the commerce clause, but it can tax you if you don't. There is NOTHING in this ruling that precludes that outcome. They can still force you to eat broccoli, but now they will use the whip instead of the leash."
I thought that was inspired imagery. I've seen some people making the point that passing taxes is transparent and therefore easier for voters to police, but I don't know what to think about that.
Jun '12
Re: An Act of Great Cunning
A point I have made several times today.
There is a line from "The Hunt For Red October" a White House aide says "Look I'm a politician, I spend half my time kissing babies and the other half stealing their lollipops,"
With someone like Mitt your concern is justified....even if he is severely conservative.
Re: An Act of Great Cunning
wmartin
From Hot Air today:
" The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before. In fact, the conservative opinion today specifically mentioned Article I, section 7 at one point while raising no objection to Reid’s sleight of hand."
So it doesn't really matter anyway. There is no basis for such a lawsuit.
http://hotair.com/archives/2012/06/28/say-doesnt-the-constitution-require-tax-bills-to-originate-in-the-house/ · 39 minutes ago
Edited 38 minutes ago
So, once again, the Supreme Court has eliminated a constitutional restraint.
Dec '10
Re: An Act of Great Cunning
Dr. Rahe,
First, I am very glad you have come back from your surgery in such fine form.
Second, your concept is astounding. Obamacare once branded as a tax, can be brought down by a new suit because it originated in the Senate and usurped the power of the House over tax revenue.
In chess this is called a sacrifice. Your opponent gains a temporary small victory but is drawn into a position of weakness which you exploit to a final victory.
Now you have my attention!!!
Regards,
Jim
Jan '11
Re: An Act of Great Cunning
Dr. Rahe,
You repeated your most salient sentence in one of your comments:
"The Supreme Court will not defend the Constitution against a determined Democratic Party."
That says it all, doesn't it?
Of course, the Warren Court and the Burger Court had no trouble perverting the Constitution against a determined Republican Party. They simply ignored the GOP and went on their merry way, serenaded by the Linda Greenhouse Singers on their way to receiving Tides Foundation medals at the Kennedy Center.
I think it was John O'Sullivan who said that institutions become liberal unless they are explicitly conservative. People, too. That's why stringent ideological litmus tests for planned SCOTUS nominees are essential - and why Democrats devilishly criticize Republicans for even contemplating the idea, while covertly conducting their own tests on their own potential justices.
Enough with the Souters, the Roberts' and the Miers' (W's second choice, remember?) - Once we have a Senate majority we should insist on Justice Ann Coulter - even if Obama is the President.
Conservatives want Republican office-holders and judges who enjoy slapping Democrats across the face - figuratively - and who then laugh at the Democrats when they cry.
Edited on June 29, 2012 at 4:24amAug '10
Re: An Act of Great Cunning
Dr Rahe, you are such a gentleman for warning us. And I'm delighted that you seem to be so well on the mend.
...Though I have to admit to also wondering whether post-surgical "happy pills" are making you a bit more optimistic than you otherwise would be :-)
Edited on June 29, 2012 at 4:31amApr '11
Re: An Act of Great Cunning
Professor Rahe, I am glad you are feeling better; however, I must disagree with you post in part. To paraphrase an old maxim "never ascribe to cunning what can better be described as cowardice." I agree in his own way Roberts tried the best he could to mitigate the damage but the damage has been done. I thing I worry about is if Roberts hasn't judged Obama better than we all have. If he is willing to usurp the legislative branch to score a political point with Hispanic voters; he is more than capable of ignoring the Supreme Court and the political branches will never hold him accountable for any usurpation no matter how large. Perhaps Roberts has correctly gauged the man. That having been said Roberts has dealt a blow to the Constitution today that it may not recover from. I gravely fear we have passed from the rule of law to the rule of men today.
Dec '10
Re: An Act of Great Cunning
My post #36 got hung up in the network and didn't come down until after #35 had been posted.
I've got political whiplash by now. I may need surgery.
Regards,
Jim