Posted on 06/29/2012 6:06:10 AM PDT by 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:
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:
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:
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.
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:
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:
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:
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.
You said: “ And so our hopes have been pinned on getting the right people elected and on taking control of our government.”
No, our hopes have not been pinned on that. But this was a political article, and therefore the discussion about this article in a political vein.
I too want to find the "silver lining" in this matter and in our present circumstance. As you say, Ginsburg's reaction suggests there is one.
Also, I agree there are big differences between RomneyCare and ObamaCare. Most importantly, Romney's solution does not oblige Texas, South Dakota, Alaska, etc. - each one having unique exigencies and complexities. And the IRS with its fearsome authority does not enforce it.
The quote from Williamson makes an important point, i.e. that 1 in 5 would not vote for a Mormon.
The LDS like Scientology has secret rites and keeps a tight rein on its members. Voters in the Bible Belt would probably bristle at either one for the same reason.
And sadly for Romney, the more LDS secrets see the light of day, the more he will be subjected to late-night ridicule by SNL, Letterman, etc.
However, I suspect there may be enough over-taxed, frustrated, ObamaCare-hating Independents and Democrats to make up the difference if 20% simply refuse to vote for Romney because he is a Mormon.
Nonsense! The Constitution was penned with the intent that taxes could only be raised for the limited expressed purposes indicated in the Document. Only a moron, or a complete nitwit would believe and claim otherwise.
"It is not our job to protect the people from the consequences of their political choices."
What a BS cop out fool.
I join in earnest, urgent prayer for our country!
At bottom politics answer the question, “how shall we live” thus are about morality. There is no such thing as a “neutral” body of knowledge distinct from morality, that notion is a Marxist Frankfurt School invention crafted to replace this nation’s Judeo-Christian moral law and thinking with socialistic thinking and inverted morality (political correctness) disguised as “politics.”
Americans have been propagandized so effectively that they themselves serve as gate-keepers (censors), as you are trying to do when you say, “But this was a political article, and therefore the discussion about this article in a political vein.”
Read: Cultural Marxism
http://www.americanthinker.com/2007/02/cultural_marxism.html
Your premise is totally wrong. Politics does NOT answer the question “how shall we live.” It only answers the question of “how shalt government say we shall live.” Two totally different concepts. I pity those who cannot tell the difference.
You comments about the neutral body of knowledge actually work in favor of my argument, not those who I was responding to.
As I’ve been reading and listening around the web, I find very few now who are willing to jump the shark with George Will and declare John Roberts an absolute genius.
Last night, Charles Krauthammer backpeddled and said basically he, as a psychiatrist, was attempting to explain why Roberts did what he did. His best bet was that Roberts thought Roberts was doing something good (to which O’Reilly interjected “that’s insane”), but that his analysis is only an attempt to explain. He thinks personally that it was a terrible decision.
Steyn thinks Roberts would be on the left in Dear Old Canada.
Rush thinks it’s deceitful betrayal.
Paul Ryan says it’s a terrible decision.
Against that are a few lightweights who would have us believe that by surrendering on the issue that Roberts has stepped into the realm of Eternity-Class Strategerists.
Let me suggest that Eisehower should have approached FDR with this plan: “Franklin, here’s what we’ll do. I will cross the channel and then surrender the entire army to the Bosch. That will so over-burden their prison system that they will topple from the inside.”
It’s called the “Unconditional Surrender” Strategy...the same that was used with tremendous success in....uh...and uh....
It only answers the question of “how shalt government say we shall live.”
Spirited: You are splitting hairs. Either government tells us how we shal live or people themselves do. Either way, politics is about morality. In fact, your accusation, “Your premise is totally wrong” is a moral judgement based on whatever serves as your moral barometer.
And so the question you need to answer is this: What is the source for your moral judgement? Is it God’s unchanging Moral Absolutes or is it yourself? If yourself, then your moral outrage at John Roberts as well as your moral judgement against me is nothing more than your personal opinion.
The statue in front of the Alamo (paraphrased) says:
Thank you for sharing your insights, dear spirited irish!
What is wrong with the America is the same thing that is wrong with the Roberts ruling, they are both spiritual in nature.
Roberts ruling indicates that he is in fact a statist, who does not believe in a higher power than the state, nor in the God given rights of man or in the three co-equal branches of government.
More polishing a turd.
All that is irrelevant to a judicial judgement.
The job is to interpret and uphold the law
I fail to see how that's better than Obama being forced to explain how he did all that despite the fact that it was illegal.
There's a big difference between "silver linings" and "trying to make the best of a bad situation."
First, there is nothing in the majority opinion which limits governmental power under the Commerce Clause beyond any existing precedents.
Second, even if there were, there is no reason that could not have been accomplished in a ruling which also overturned Obamacare. Roberts let stand the most vast expansion of government in our history, and if the ruling didn’t stop Obamacare, it is difficult to imagine anything at all that it would stop.
This is about as “strategic” as taking a deliberate safety instead of punting from your own goal-line when you’re only ahead by one point.
Therefore, he ruled, I shall grant exactly that power.
That Roberts guy. Man, he is a genius. So strategic.
There is nothing good in this health care ruling. Roberts is not an originalist. There is absolutely nothing good or right about this ruling or Roberts.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.