Conservatives, Constitutionalists, and originalists grew increasingly alarmed as word trickled from the Supreme Court yesterday that Chief Justice John Roberts had voted with “the liberals” to uphold the Patient Protection and Affordable Care Act — four months before the election! Roberts has handed President Obama a victory on his singular legislative accomplishment, they said, and abandoned all reason in calling the individual mandate a “tax,” though even Congress didn’t call it that when the bill was passed.
Even wobbly Justice Anthony Kennedy joined the conservative stalwarts Samuel Alito, Clarence Thomas, and Antonin Scalia in deriding Roberts for rewriting ObamaCare to save it. Their dissenting opinion was simple: Congress calls the fee for refusing to purchase insurance a “penalty,” so that’s what it is. Roberts shouldn’t try to make it something lawmakers didn’t intend.
Indeed, when the president peddled his plan, he repeatedly denied creating a new tax. But before the Court, when the future of the law hung in the balance, the administration argued that if the Court could not uphold it on constitutional “commerce clause” grounds, then perhaps it could be considered part of Congress’ constitutional taxing power. The dissenters argue against such obvious dissembling, and note that the Court has “never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax.”
Roberts agreed with his conservative colleagues that Congress has no power to command consumers to buy insurance, since the “commerce clause” can’t regulate failure to engage in commerce. Having rejected the government’s main argument, and saved us from a hellish future of untrammeled congressional power, he felt compelled to grapple with the administration’s Plan B — the tax gambit. There, his deference to the legislative branch supported by a long history of precedent stayed his hand from striking down the law.
Was this capitulation? Is he irrational or cowardly? Off his meds? You decide.
Here’s a brief summary of the reasoning that led him to conclude the individual mandate is a tax, and thus within the power of Congress.
1. It’s not the court’s job to evaluate the wisdom or practicality of a law, merely to determine whether it violates the Constitution.
2. Respecting the separation of powers, the Court should make every reasonable effort to uphold legislation.
3. The government’s fall-back justification for the individual mandate was the power of Congress “to lay and collect taxes…to provide for the…general welfare of the United States.” (Article 1, Section 8 )
4. No matter what the law calls the individual mandate, if it looks like a tax and quacks like a tax, it’s a tax.
5. The “shared responsibility payment” for failure to buy health insurance is collected by the IRS, based on income, and clears the payor of responsibility to the law. If it were just a penalty, the payor would be considered guilty of unlawful activity before the bar of justice. But under ObamaCare, you’ve done your civic duty even if you fail to buy insurance, so long as you pay the fee.
6. Because it’s a tax, Congress may impose it without offending the Constitution’s enumeration of powers.
For years, conservatives have argued that the Supreme Court should not decide cases based on ideology or personal preference, but upon the text of the Constitution, and upon established precedent under that charter. Justices should not legislate from the bench.
While judicial lawmaking is exactly what Justices Alito, Thomas, Kennedy, and Scalia accuse Roberts of doing, he asserts precisely the opposite. He refrains from overturning a law that, clearly, he considers ill-advised, badly crafted, and ultimately doomed.
His reckless restraint, as some might view it, is anchored in the doctrine of separation of powers. He also telegraphs to his readers that the way to deal with this offensive law is near at hand, in November.
While I would prefer an outcome that supports my principles, and advances the cause of my party, my primary allegiance must be to the process established under the “supreme law of the land.”
The easier solution to a vexing problem is to have someone powerful remove it. The hard way calls for devotion, on your part, to upholding our values — using our constitutional prerogative to replace the incompetent, the corrupt, and the compromised.
If we should fail to do so this November, our whining about Roberts’ betrayal will do nothing to stop the onslaught of ObamaCare. And in the near future, when a law comes along that we wish to see upheld, we’ll be grateful for the precedent set by Roberts’ reasonable restraint.
Also read Christian Adams: “Today, the Court flinched from that obligation, in part because of decades of conservatives repeating the empty and now obsolete admonition against ‘legislating from the bench.’”