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Jun 29 2012

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John Roberts Affirms Obamacare

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Obamacare - Law of the Land

To understand the historic Supreme Court decision yesterday upholding the constitutionality of Obamacare, one must understand the dual roles of Chief Justice John Roberts.

As Charles Krauthammer said today, “Jurisprudentially, he [Roberts] is a constitutional conservative. [But] Institutionally, he is Chief Justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.”

In deciding the fate of Obamacare, the two roles were at war with each other.

The constitutional conservative in Roberts saw the plain danger of unchecked federal power in affirming the Obama administration’s argument that the commerce clause provided authority for Obamacare’s individual mandate.  However, the Roberts who is custodian of the Court was keenly aware of Supreme Court precedents – from Roe v. Wade to Bush v. Gore –  that have eroded the Court’s legitimacy and standing over time. A Supreme Court decision striking down a president’s signature domestic accomplishment in an election year would almost certainly add a new case to that list of suspect outcomes.

So Roberts ultimately decided to split the difference.

Philosophically, he joined his fellow conservatives in ruling that the individual mandate was an unconstitutional exercise of authority through the commerce clause as well as the “necessary and proper” clause; a major victory for advocates of limited government and enumerated powers.  Roberts also sided with six other Justices in striking down an Obamacare requirement that states agree to mandatory expansion of Medicaid or risk losing all Medicaid funding, a victory for 10th Amendment supporters.

But institutionally, Roberts voted to uphold a single provision which effectively upheld the whole law, preserving, at least notionally, SCOTUS’ institutional integrity as Obamacare now returns to where it all started – the political arena  – for debate and consideration.

Unfortunately for the Court and the nation, Roberts’ support for the individual mandate under Congress’ tax authority is a flagrant example of incoherent, conflicted, flimsy and whimsical reasoning in constitutional law.  In creating the majority by joining the liberals on the Court, the Chief Justice has created more problems than the SCOTUS verdict solves.

First, in order to reach a conclusion that the tax authority was appropriate, the majority, under Roberts, consciously ignored congressional enactment of the mandate in a separate provision from any other sections that were specifically labeled as “taxes.” As the dissenting Justices clearly point out, “to say that the Individual mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Having made that leap, Roberts and then stated, “Upholding the individual mandate under the Taxing Clause does not recognize any new federal power.”

 If only it were so.

Having robustly and soundly rejected the government’s argument that Obamacare could regulate inactivity, Roberts then inexplicably joined the Court’s liberals to confirm that under the exact same circumstances, Congress had the authority to tax inactivity; a decision as consequential as had the majority upheld the mandate on commerce clause grounds

Article I Section II of the Constitution lays out the original framework for taxation. “…direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers…” This was modified by the 16th Amendment which provided specific authority for income taxes. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

In his decision, Roberts compared the new “mandate tax” to other common taxes like those on cigarettes or gasoline and, perhaps by necessity, income. But this is the intellectual trap that Obamacare supporters originally laid out, stating that the mandate was no different in practice than car insurance, for example. But the categories that Roberts laid out are all taxes that result from activity. Citizens have a choice to smoke, drive or work. Roberts and the Court’s liberals have now established a precedent for an entirely new, punitive regulatory scheme based on taxing inactivity.

For all you “single payer” health-care  enthusiasts out there, the Roberts Court has now given you a gift for the ages if you ever manage to get full control of the federal government again. That should horrify the rest of us.

The irony – and durable intellectual confusion – continues with the Court’s parallel consideration of whether the Anti-Injunction Act applies to Obamacare.

By way of refresher, the Anti-Injunction Act states that taxes cannot be legally challenged until the taxes have been collected. Followers of the Supreme Court case may remember that the Anti-Injunction Act took up the first day of Obamacare oral argument, a pro-forma consideration at the time, since no party to the case was actively advocating that the mandate should be considered a tax. SCOTUS had to hire a third party to advocate on behalf of the law.

Yesterday, the Court ruled that the Anti-Injunction Act did not apply to Obamacare. But as the Court has now ruled that the mandate is a tax for the purposes of the law, it begs the question of why the Anti-Injunction Act shouldn’t apply as the newly minted “mandate tax” does not start until 2014.

It makes no sense. Which may be the larger verdict on Roberts’ course of action.

Indicating decisions that guided his thinking, Roberts quoted an 1895 Supreme Court case stating, “Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”  That would appear a lesser standard than which established judicial review in Marbury v. Madison, which said, “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”

It appears that an overwhelming sense of expediency and pragmatism forced the Chief Justice through origami-like contortions to justify a law on notionally narrow grounds and established authorities, all in the service of protecting the integrity of the supreme judiciary. While a balance of power crisis has been averted, the result is a fresh set of daunting constitutional problems for future generations to grapple with.

Avoidable problems.

Instead, having taken on the fight over Obamacare and its fundamental constitutional issues , Roberts ultimately blinked instead of following through. It was a defensive and self conscious Chief Justice who said, “it is not our job to protect the people from the consequences of their political choices.” While that may be true, it is certainly the job of the Court to protect the people from the consequences of laws that don’t meet constitutional scrutiny,  conjured up by their political choices. Here, Roberts failed.

Given the tenuousness of the final decision, Roberts would have been better served to strike down the law, take the political hit he obviously saw coming and move on, letting history judge the integrity of the Court. That would not only have been right, it would also have been courageous.

Today, liberals were comparing Roberts to John Marshall, the Chief Justice who authored Marbury v. Madison, lauding Roberts for protecting the “integrity” of the Court.  These were the same people who were saying the most outrageous things about Roberts as late as Wednesday, proving that Roberts’ critics are as elastic in their praise as he is in assessing constitutionality.

SCOTUS lives to fight another day. But the Obamacare decision leaves you wondering, “to what end.”?

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