Posted on 07/05/2012 1:42:07 PM PDT by Charles Henrickson
In 2005 I was asked by the Bush administration to assist Judge John Roberts during the Senate confirmation process for his nomination as chief justice of the United States. Over several pressure-packed days, and throughout the confirmation process, I felt I got to know him fairly well. I found him to be one of the most brilliant, thoughtful, and humorous people I’d ever met. Those qualities don’t always go together. It was clear he was going to be a major right-of-center voice on the Supreme Court for decades to come. So it is with a great deal of personal interest that I have considered his opinion in Sebelius and the commentary that has followed.
The Antithesis Of John Roberts
The chief justice is a good man, whose record over the whole of his career will probably be a good one, perhaps even a great one. However, I do not agree with this opinion. I believe the dissent got it right. I am well aware of the fact that a conscientious judge must sometimes rule in a manner that he personally disagrees with. But the majority opinion appears to be a result looking for a rationale, which is the antithesis of what I ever thought would be the approach of John Roberts. One of his new admirers described his opinion as “incoherent but brilliant.” That’s the most depressing thing I have read in a long time.
There is rampant speculation as to why Justice Roberts rendered the opinion he did. To many on the left it is believed that he was looking out for the Supreme Court as an institution. Liberals made it clear well in advance that if the Court struck Obamacare down they would attack the Court as politicized and illegitimate. They now say that the chief justice “put the country first” by the “clever” means of rejecting the government’s central Commerce Clause argument and instead achieving the same result by relying upon the federal government’s power to tax, an argument that was seen as peripheral at best by all the lower courts that had considered the issue of constitutionality. The same is true with regard to the litigants.
A Misguided View Of The Role Of The Court
Some on the right say that Roberts has actually hurt Obama’s chances for reelection; that he has undermined Obama’s constitutional rationale (the Commerce Clause), restricted his ability to pay for ObamaCare (giving states the right to reject the Medicaid provisions), and hung a big tax albatross around his neck during an election year (holding that the mandate penalty is a tax).
There may be some truth to all or part of this speculation. The problem is that none of these considerations are an appropriate basis for deciding a lawsuit. Cases are still supposed to be decided upon the law and the facts before the court. This may seem a mundane point in a discussion involving institutional and national salvation, but it’s true nevertheless. An umpire does not concern himself with the outcome of the game as he is calling balls and strikes.
Besides, once he gets on this slippery slope, what would make any justice think that he can even determine what is best for his institution or the country over and above a proper decision in the case before him? FDR attacked the Hughes Court, and it apparently bent to his will. That Court went down in history, not for putting the nation first, but for caving in to pressure. (The latest Rasmussen poll has the Supreme Court’s approval rating down 11 percent since the decision.)
I would like to think that none of this represents Roberts’ reasoning, But one thing is for sure: There are a lot of people out there on the left who think that it would be laudable if it did. That is a seriously misguided view of the role of the Court.
The desire to find a Reagan-like pony in all of this has caused some of my conservative friends to see one where none exists. In fact, many pessimistic liberals and optimistic conservatives have one thing in common: the view that somehow the opinion places new limitations on the use of the Commerce Clause, because it was deemed not applicable in Sebelius. They also think that the decision substantially restricts the conditions that the federal government can place on states regarding programs partially funded by the federal government. Unfortunately, in my view, both of these beliefs are wrong.
The majority opinion rejected the Commerce Clause as a valid basis for the individual mandate because, while the federal government can regulate commerce and commercial activity, it cannot compel economic activity, as the mandate attempted to do. The chief justice’s opinion contained a lot of music about the limitations of the Commerce Clause that is easy on conservative ears, but it was essentially the same set of points that conservative justices, usually in the minority, have been making for years. In 1942 the Supreme Court decided in Wickard v. Filburn that a farmer could be penalized for growing wheat on his own farm for his own consumption. Many view this as the high-water mark of the expansive interpretation of the Commerce Clause. The Court in Sebelius in no way overruled or rejected Wickard. On the contrary, the opinion pointed out that in Wickard the case involved the “activity” of growing wheat. In Sebelius there is no commercial activity on the part of one who chooses not to purchase health insurance. Wickard is just as egregious and just as valid as it has always been.
One of the few instances when the Court invalidated a congressional extension of the Commerce Clause was in the case of U.S. v. Lopez in 1995, when Congress tried to penalize gun possession in local school districts. In the Obamacare ruling, the chief justice wrote the following: “The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez . . . , but it is now well established that Congress has broad authority under the Clause.” So apparently Lopez was just a momentary glitch.
So we can be pleased that the Court did not take the unprecedented step of allowing the absence of activity to be regulated under the Commerce Clause, but that still leaves what I would guess to be 99 percent of future Commerce Clause cases — cases that will involve some sort of alleged “activity” on the part of the person or persons being regulated. We will still have the same ideological split on the Court, probably with the swing vote making a decision based upon how outrageous the federal overreach is. We are essentially where we were before with regard to the Commerce Clause. So, one cheer, not two. And certainly not three.
On the other issue I mentioned above, the Court decided that the federal government could not withdraw all of its previously committed Medicaid funding to a state on the grounds that the state decided not to participate in the Obamacare expansion of Medicaid. The Court did nothing, however, to prevent the federal government in the future from withholding money if a state reneged on previously-agreed-upon federal requirements. Here, the Court simply held that the feds could not egregiously withdraw previously-agreed-upon funding by imposing new requirements that a state could not or would not accept. This holding that states should not be subjected to a bait-and-switch operation was agreed to by seven justices, even though the administration was counting on being able to load part of the cost of Obamacare onto the states by means of this Medicaid requirement.
Again, we should be thankful for this status-quo result, but the political Left has no need for concern that this decision has done anything to diminish the federal government’s ability to call the shots if a state decides to take federal money.
So we are left with no silver linings and one major concern for the future that goes beyond Obamacare. It seems that, after this Court decision, while the government cannot make you buy broccoli under the Commerce Clause, it can tax you if you don’t.
Again, some optimists say that, since the Court relied upon the government’s taxing power, we are protected as a practical matter, since Congress would always be reluctant to pass a huge new tax. However, in the future Congress can insist it’s not a tax, just as it did this time. One would think that it would be politically more difficult to pull this off again, but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.
The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.
- Fred Thompson
Transcript...@Supreme Court: The Health Care Law And The Individual Mandate
It's got this little number in it...
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
Sounds to me like Congress knew it was a tax during debate.
No, but in defense of the court (ugh), their job was to decide based on the issues presented to them. Congress creeps have no such excuse.
Doesn't it seem pretty clear from his comments that Congress, on both sides of the aisle, knew they were addressing a tax, no matter what it was called?
@It Was Always a Tax
In part...Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.
Snip...House Democrats likewise argued that Obamacare is constitutionally justified as an exercise of Congress’s power to levy taxes and spend money. Thus, Rep. George Miller of California said:
A really good article, IMO.
Be sure to read this...
Is Mr. Fred right that it wasn't covered in debate??
Chief Roberts just passed the buck for his cowardly decision right down to average American citizen. WE are to fault for not being intelligent enough to elect the right people to Congress.
Well, I have one question to ask the brilliant and stellar Chief Roberts, did you feel that way when Congress vetted and approved your power on the Supreme Court.
It was Congress, a Congress we elected who gave you your job but I have a feeling, at the time, you were pretty darn grateful that the voting public was intelligent enough to elect a Congress that met your lofty reputation.
You sir, are the walking, talking example of the Peter Principle.
Oh, shut up, Fred.
Justice Roberts actually echoed the same reasoning as a prior Justice Roberts in regarding the federal power to tax and spend for the “general welfare,” in U.S. v. Butler, 297 U.S. 1 (1936) regarding the Agricultural Adjustment Act. http://supreme.justia.com/cases/federal/us/297/1/
That Justice Roberts (for the Court) stated:
“The clause thought to authorize the legislation, the first, confers upon the Congress power ‘to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. ...’ It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The government concedes that the phrase ‘to provide for the general welfare’ qualifies the power ‘to lay and collect taxes.’ The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, ‘it is obvious that under color of the generality of the words, to ‘provide for the common defence and general welfare’, the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.’ The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare.”
In that case, as in the current case, the Constitution grants the power to lay taxes for the common defence and general welfare of the United States. However, this does not extend to the creation of a federal program that exceeds the limits of the enumerated powers and invades or compels an area reserved to state jurisdiction.
Looks to me that these principles were decided decades ago.
OK fred.....is he being Blackmailed or Threatened because his two ADOPTED children were ILLEGALY ADOPTED. is he being Blackmailed because he is a Bi-SEXUAL or is he just a DUMBASS LIBERAL???? Which one, FRED????? There are NO other REASONS.....well except the MOST pathetic one.....he doesn;t want to read bad things about himself in the newspapers!!! SO WHICH ONE IS IT....FRED??? JOHNNY???
Good old Fred is not a great judge of character. He sounds like his job was to see if Roberts was a nice guy, maybe he is but his judgement is horrid..
That's an honorable stand and Thompson doesn't deserve abuse for not wanting to get personal.
BTW, thanks for the photo. Judging from the hair, Roberts may not be that gay after all.
bump for later
“
The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.
- Fred Thompson “
I’m afraid your mistaken mister Thompson, no matter what happens in November. Washington will no longer be restricted to respecting any of our rights.
There is no way we can ever hope to win every election from now on to eternity. Sooner or later anther Obama will lie and cheat his way back into power and without a Constitution to protect us we will be subject to his lawless whims.
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
His opionion will live in infamy.
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