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.

  1. dash

    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.

  2. Fake John Galt

    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.

  3. Skyler

    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.

  4. Sisyphus

    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.

  5. The Great Adventure!

    Good to see you back in here Dr. Rahe.  Hope you’re feeling better and on the mend.

    Personally I’m trying hard to hold the anger down and channel it into determination.

  6. tabula rasa

    Professor: It’s clear your surgery hasn’t clouded your mind.

    Welcome back.

  7. Dave Carter

    First, welcome back Professor!!  If your post is any indication, your recovery is speeding along wonderfully and I’m elated to see that.  

    You raise an interesting possibility here,..but my worry is that a precedent for compelling the purchase of products and services via taxation has been set here, so that even if Obamacare is dispensed with, the precedent stands for future use.  And given the judiciary’s allegiance to Stare Decisis, a Latin term which means, “Once screwed, always screwed,” we are in real trouble here.  

  8. Albert Arthur

    I don’t know…No offense, professor, but are you still on pain meds? I just have a heard time buying the argument that this is actually a win for limited government.

  9. Gwen Novak

    I don’t comment much but I’m very glad your surgery went well and you are on the mend.

  10. Severely Ltd.

    Glad you’re fine, in fact better than fine, your insights here are among the best I’ve seen today. You are probably still in pain, but this has alleviated some of mine.

  11. 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.

  12. Jimmy Carter

    Welcome back, Professor.

    Swinging for the fences. We expect nothing less.

  13. Peter Robinson

    Paul, Paul, you’ve just salvaged my day, first by demonstrating that, whatever the pains of your recuperation, you remain–you.  Reasoned, eloquent, and able to see what the rest of us miss.  And the thought that Roberts’ decision might actually be good, not bad–I’m not sure I agree, but I do find that I’m unable to disagree, and that alone has transformed my mood.

    Cogitation to follow.  But for now, thanks, Paul, and welcome back!

  14. Percival

    I’m glad you are posting again, Professor.

    The argument that this will ease repeal by making ACA just a tax issue is heartening.  It will be amusing to watch the Democrats, who went through such torturous logic to claim it wasn’t a tax when they were passing it, celebrate it’s being upheld as a tax, then go back to screaming “no it isn’t” when/if the Republicans regain control.

    I still feel like punching out a hippy, however.

  15. No Caesar

    Great analysis.  Thank you.  It does appear true that “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”.  But that does not mean we have to let the Court off the hook. 

    So Roberts thought he could pay the Danegeld to save his beloved Court.  The precedent is set, two can play Obama’s bullying game, we must declare war from our side.  Put them in the hot seat.  Don’t let them think they can avoid trouble by making us take it on the chin.   Roberts’ decision means that SCOTUS is just another political body; they are just politicians.  Justice is not blind at the Supreme Court, she’s not even peeking.  The blindfold is off and she’s laughing in our faces while putting her foot on the scales to suit her fancy.

  16. The Mugwump

    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?      

  17. Mel Foil

    Glad you’re back and recovering well. Whatever Roberts’ motivations, it’s clear that he did no favors for candidate Obama. Obama can’t run against an activist conservative Court now, as he would probably like to do. And yet, Obama has to hang this big healthcare tax increase (official now) around his neck.

  18. Freesmith

    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?

  19. Andrew Barrett

    George Will, Jay Cost, and a few others have also made the argument today that Roberts’ ruling will set a strong precedent for a more limited interpretation of the Commerce Clause.  I would love to buy it.  However, once liberals are a majority of the Court, there is no way they will follow this precedent; they have been ignoring the most important constitutional precedent for over 80 years…the U.S. Constitution.

    After struggling with this decision in my our mind all day, I think Roberts was either too concerned with the reputation of the Court or too clever by half.

  20. Andrew Barrett
    Mel Foil: And yet, Obama has to hang this big healthcare tax increase (official now) around his neck. · 10 minutes ago

    Unfortunately, no tax increase will be hung around Obama’s neck this election.  The tax increases in question will not go into effect until well after the presidential votes are tallied.  People don’t vote against tax increase until they actually feel them in their wallets.

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