The Roberts Opinion: It's Not All Bad

Townhall.com ^ | 6/29/2012 | Kate Hicks

[Servant of the Cross]

John Roberts is not a “traitor to his philosophy.” He is not a liberal. He is, above all else, a very strict originalist, and the Chief Justice of a Court that is acutely aware – and wary – of its role in politics. Understand that his opinion, though certainly not ideal for the Right, contains more good news for conservatives in its pages than it does on its face.

So let’s take a look at his surprising opinion – the controlling opinion, as it’s called, which sets precedent and “say[s] what the law is,” as Marshall said so long ago.

The Good News

First: let’s give credit where it’s due. Roberts made it abundantly clear that he’s not a fan of the actual policy. Moreover, he shifted responsibility for this policy back to the American people, and revealed his respect for the separation of powers:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Unhappy with the ruling though you may be, the wisdom contained in that paragraph alone ought to cheer you. And I promise, there’s more!

Now then. What hath he wrought?

“Commerce Clause” is everywhere in the news today, and if you’ll recall, that was considered the basis for both upholding and striking down the mandate. Roberts threw out the government’s argument that it could regulate inactivity because of the “substantial effect” abstention from the market would have on the market as a whole. This, he said, was way too much power:

“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. […] Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

Moreover, he created a new precedent in Commerce Clause jurisprudence that limits its scope significantly, by accepting the distinction between activity and inactivity. In so doing, he created a concrete definition of Federal power that will influence the way Congress makes law in the future, and the way the Court interprets future Commerce Clause cases. Here’s the key passage to that effect:

“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. […] The Government’s theory would erode those limits [on the Commerce Clause], permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 9 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”

It’s hard to see at first glance why we should celebrate this ruling, especially because it was evidently not enough for Roberts to overturn the mandate. But what Roberts did here was establish a defining limit on the Commerce Clause, which had heretofore not really existed. Congress is now restricted in its ability to use this very broad power, in that it cannot compel individuals to participate in the market. Consider, also, the wide array of tools at Congress’ disposal under the Commerce Clause to ensure compliance. Roberts has ruled that Congress can’t criminalize not buying something because of the effect abstention will have on the market. Indeed, that was at issue in this case; the fact that it’s unconstitutional is a win for liberty.

Furthermore, Roberts narrowed the definition of “substantially effects” to encompass activity that is already occurring, and curtailed Congress’ power to presuppose, and then regulate, activity.

“The proposition that congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent. We have said that Congress can anticipate the effects on commerce of an economic activity. […] But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce.”

Now, think back to the time when constitutional challenges to the mandate first began to surface: every legal scholar worth his salt, conservative or liberal, believed the Court would kill the activity/inactivity distinction. Yet that was the major victory the conservatives won in this case, and it’s now legal precedent. The mandate itself lives on, but Congress may never apply the full force of the U.S. government to compel anyone to make a purchase. This, the fight for the Commerce Clause, was the real war. And the right won it. Perhaps the fruit isn’t ripe yet, but it will prove juicy in time.

So now, to turn to the legal reasoning for why the mandate remains law. In other words…

The Bad News

Here’s Roberts: “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

You may keep your law, he says. But let me redefine it for you.

In the opinion, Roberts applies a test from an earlier case, Drexel Furniture, to determine whether the “penalty” meets all the requirements of a tax. It’s another long excerpt, but worth reading, as he’s very clear:

“The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. It may often be a reasonable financial decision to make the payment rather than purchase insurance… Second, the individual mandate contains no scienter requirement [i.e. it’s not punitive for breaking the law]. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.”

So here’s how it’s going to work from now on: the mandate is now just the “tax on not having healthcare,” which I’m sure will get a snappier name in the coming days, something akin to the “gas tax,” or the “income tax,” which most of us pay. Roberts says as much:

“[A]ccording to the Government…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

So after he invalidated the Commerce Clause justification, he determined that really, the “penalty” doesn’t force participation in the market; hence, why he didn’t throw out the mandate with the Commerce logic. It’s not really forcing people into the market; after all, it didn’t criminalize not owning insurance. It just puts a tax on it, and Roberts notes that taxes are often used to induce certain behavior:

“But taxes that seek to influence conduct are nothing new. […] Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise money, but to encourage people to quit smoking. […] That Sec5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.”

Frankly, this doesn’t look like an expansion of the taxing power. Perhaps he’s articulating more clearly the intent behind so-called “sin taxes,” and other behaviorally-motivated taxes, but he’s not handing Congress more power. He’s just explaining a power they already had, and use.

Remember—he never said it was good policy, and in fact made it clear that he feels otherwise. What he did was invalidate an unconstitutional argument in defense of the policy, thereby banning it from future use, and then uphold a bad, but not unconstitutional statute, because it adhered to a permissible exercise of power. Congress passed a tax, he says, and it’s a bad one, and he doesn’t like it, but that doesn’t make it impermissible.

So, is this what the right really wanted to hear? Heck no! We like the dissent, where the whole thing goes. But Roberts is dumb like a fox, and it’s worth looking at the effects this ruling will have on the future, both near and far.

The Upshot

Over, and over, and over, President Obama assured us that this was not a tax. He was not raising taxes on the middle class (that’s what the Republicans were doing, remember?). Nope, says the CJ: ya raised our taxes. Politically, that’s going to prove troublesome for Obama this fall, and in a much more substantial way than having his “signature legislative accomplishment” overturned altogether.

For one, Roberts took away Obama’s ability to campaign against the Court. They upheld his law; he can’t do as he did after Citizens United and construe the ACA ruling as a massively political attack on the little guy and his uninsured plight. He has nothing to blame on the Justices. All they did was recharacterize the “penalty” as constitutional under the taxing power. Roberts robbed Obama of a scapegoat, and stuck Obama with an unpopular law in an election year. Ouch.

Second, Roberts has literally forced Obama to acknowledged that he broke a promise, and raised taxes. And tax increases don’t resonate well with the voters. Now, it’s doubtful Obama will assume responsibility for raising taxes – note that in his speech today, he didn’t acknowledge the Court’s reasoning for the ruling, only that they ruled in his favor. But the GOP has just added a major weapon to its arsenal: want to lower taxes? Then don’t reelect Obama.

This third observation is one that isn’t immediately eminent, but nonetheless just as important as those prior two, if not more so. Roberts has made it substantially easier to repeal Obamacare, and substantially harder to pass anything like it in the future. As noted above, Americans don’t like taxes. And thanks to the fact that many will opt to pay the tax rather than buy insurance (as that will cost less), the insurance problem in this country hasn’t been solved. The fact that we’ve settled the question of the mandate’s constitutionality means we can turn to the rest of the law, and address the flaws contained therein, and perhaps find a real solution to the healthcare crisis. As for future laws, Democrats lost the ability to hide behind “penalty” language. Roberts saw that the mandate waddled and quacked, and gave it the appropriate name. (He also forbade Congress from actually “mandating” anything, so that name isn’t even correct anymore.) The ACA barely passed the first time; future iterations of this theory are destined to fail, because Congress will have to stand up and say, “We propose to enact a new tax so as to influence your behavior.” If that isn’t the proverbial lead balloon, I don’t know what is.

So there you have it: it’s really not all bad. It’s not what we wanted, but then – as I suspect Obama will learn in the coming months – we must remember to be careful what we wish for.

[Servant of the Cross]

Some great analysis of the silver linings by an impressive young lady. A good argument that can explain the behavior of the Chief Justice.

[Lady Lucky]

Silver linings, inferred ponies in the pasture, lipstick on the pig, and now another round of hosannas from the Ben Dover Choir.

[skeeter]

I agree that this ruling doesn’t mean instant death, but face it, sometime there is no silver lining.

[rwilson99]

The fact is that Congress has the power to tax income, and they can give a deduction for carrying health insurance.

So the ObamaTax is constitution. While the execution of the HHS Mandate and other issues are still open in the eyes of SCOTUS... the simple thing everyone needs to get is...

Romney +51 for Repeal.

If Obama is reelected, what SCOTUS rules is irrelevant.

[dps.inspect]

Say what you will... Roberts is a Dick-Head... he is dead to us...

[sphinx]

The problem is, the Roberts “precedent” will bind the liberals for about seven seconds. Less if they invest in high speed shredders.

[pgkdan]

The only silver lining is taht obama has to defend obamacare in the campaign and Romney can attack him for the law and for lying to the American people about this unprecedented tax increase. That's it. Roberts turned, pure and simple. He bent over backwards to find a way to rule in favor of the mandate, even though he acknowledged that it was unconstitutional.

This ruling combined with the AZ ruling tell us that once again a so-called conservative Chief Justice has turned to the left once he's secure in his lifetime sinecure! Damn him!

[Servant of the Cross]

Townhall’s Kate Hick’s analysis on 0bamacare ruling ping.

[Mr. K]

If Obamacare was struck down, Obama would have used it as a rallying cry to his people, and might have given the election to him

Now, Romeny has the rallying cry and significant momentum, 3 months before the election

That is the best thing about the decisions (and ONLY thing keeping me sane this morning)

I hate it like poison, but OK we got it- so what do we do with it?

Like Roberts said- it is not his job to protect us from our political decisions- OK let’s go with that, and vote every one of these G@#%D@#$ mothe#$^%%#ing b@#$%rds out of office and send a message that wont be forgotten for another 100 years

PACK every town hall meeting

GET IN THEIR FACES (like the pResident told us to) at democrap AND GOP election meetings...

Get them whimpering in the corner so bad they will be afraid NOT TO repeal it

MAke 2010 landslide look like nothing...

Buy guns and ammo too- that would send quite a message

[Williams]

All good except for one thing. A single additional liberal on that court and none of them will ever vote again for the lovely distinctions in Roberts’ opinion. The Commerce Clause will be back with all guns blazing.

[Proud_texan]

"It is not our job to protect the people from the consequences of their political choices."

Suppose there was a "political" choice that said speech critical of the president was illegal?

Under Roberts logic he would be just fine with that.

[formosa]

There is no excuse nor explanation for Roberts behavior. It is illogical and foolish. All he’s done is give the green light to Washington that they can accomplish most any insanity they dream up through the use of the tax system and it will be constitutional.

The IRS will now become the behavior police and it will not take any time at all to equip them with drones and guns. Welcome to Amerika.

[napscoordinator]

Romney can attack him for the law

Kinda hard to do when he authored the bill basically with his government reach Romney care. I don’t think Romney will say anything worthwhile. He said he would get rid of first day...I don’t know how he will do that with the inauguration and Swearing-in that day. He is making a huge promise that he can’t deliver on day one as he says. He already is being unrealistic. First 100 days would have been better but like all liberals, Romney did not think before speaking. Good Luck Romney on getting rid of Obamacare the first day in office....Yeah right.

[mkjessup]

C’mon and crap some more Skittles out of your azz, we don’t have enough bright shiny colors yet.

[MEGoody]

There may be "silver linings".

The problem is, most people won't bother to dig deep enough to find the silver linings. They'll hear that SCOTUS upheld the law, and that will register as victory for ZerO and perhaps "Well, that means he knows more than the conservatives tried to claim." That may be enough to convince a fence sitter to vote for ZerO in November.

Ugh.

[Mmogamer]

Can’t make a silk purse out of a sow’s ear.

[EternalVigilance]

Meh.

[parthian shot]

Anytime the door is opened for the Federal Gov to tax us...believe me, it is ALL bad. No silver linings in sight.

[Kaslin]

1099 Comments so far after the article in Townhall.com

[duckman]

“Now, Romeny has the rallying cry and significant momentum, 3 months before the election”
That is why we must vote for Romney, even if we have to hold our nose in the election booth. We don’t want a McCain event to happen again.