I’ve been watching conservative and liberal pundits alike puzzling over the fact that Chief Justice John Roberts sided with the liberal wing of the Supreme Court to uphold President Obama’s healthcare law. I think Chief Justice Roberts gives us a glimpse into his rationale in his majority opinion. Read the following excerpt carefully, especially the underlined portion at the end.
Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).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 (Majority Opinion, p. 12).
Did you get that? In essence, Roberts argues that Congress has the right to impose taxes (which is the penalty for not obeying the mandate). If people don’t like those taxes, then they need to get rid of the political leaders who impose them. The Supreme Court is not going to adjudicate public policy. According to the Constitution, Congress can tax the citizenry, and the majority recognizes that right. In other words, he’s arguing for judicial restraint, not activism.
In short, Roberts argues that if there is no clear constitutional issue at stake, the Supreme Court should be restrained in its judgments. That’s what Roberts thinks the majority has done by letting Obamacare stand.
That is an interesting view of how Roberts, as a conservative, ended up siding with liberals. It may show legal consistency, but basically the four liberal justices let him carry their water in support of their political agenda.
Your analysis is precisely what the Newsmax article states. Roberts has done exactly what he told the Senate he would do (during his confirmation hearings): reject judicial activism.
Roberts specifically states that the decision was in NO WAY a comment over the virtue of the policy. He simply stated that if you call the mandate a tax, then it’s Constitutional. Period.
What Roberts has done in wave a red cape at a stewing bull (the already overtaxed electorate in an election year) –while standing in front of Obama and at the ready to step aside. Whether that was his intention is another question.
The Chief Justice has the right to write the majority opinion as well. This assures that a more liberal member of the court will use the decision as a means of judicial activism through the written opinion. Kennedy is the wild card here and Roberts may not have known how he would vote and circumvented the process by ensuring that only he would write the majority opinion.
One problem that I see with the Chief Justice’s opinion is that such a broad reading of Congress’ taxing powers invalidates any limits the Court placed on the Commerce Clause. It seems that according to Roberts, Congress can regulate any activity (or inactivity) provided it describes such regulation in terms of taxation, not penalties/mandates/etc. However, his “functional” view of taxation means that Congress can still describe such taxes as mandates and penalties, even going so far as to deny repeatedly that they are taxing anything (as they did in relation to Obamacare), and the Court will find such mandates/taxes constitutional.
So can the federal government force us to purchase broccoli? Yes, by passing a law mandating broccoli purchases, with a penalty for noncompliance, which the Court will regard as a tax on non-broccoli purchasing. While we can certainly vote out such politicians, it removes the Constitution as a protection from overweaning government.
Joe, that is call voting. If the congress votes that we have to eat broccoli then the constitutional consequence is to vote them out. It is not the court’s job to stop congress from making bad policy decisions.
But voting the rascals out is a political question, not a constitutional one. The Court now seems to hold that there are no limits on the power of the federal government to regulate our lives. That’s a very different view of the federal government than the one established by the founders. They put in place strict limits on what the federal government could do. The debate over health care centered on limits to federal power in the Commerce Clause. Roberts placed limits around the Commerce Clause (the government can’t regulate economic inactivity, i.e. by forcing us to participate in a market). However, the limits placed with the right hand were removed with the left. Limits on the Commerce Clause are irrelevant if the state can simply achieve the same ends with the power to tax.
The point is that fundamental protections of this sort are established by the Constitution not the ballot box. At this point, if a majority of our citizens elect politicians who want to force us to purchase GM cars, solar-powered air conditioners, or brussel sprouts, they can do so, and there’s no constitutional protection against it (at least that I can see).
Also, it appears that the original vote (after oral arguments) was in favor of full repeal, with Roberts siding with the conservatives. At some point, Roberts *seems to* have switched his vote (perhaps because of pressure from the left involving the “legitimacy” of the Court). See here: http://www.nationalreview.com/bench-memos/304300/majority-opinion-turned-dissent-ed-whelan
For a similar take, see here: http://www.redstate.com/thomas/2012/06/28/i-am-down-on-john-roberts/
So a proper translation might be, “If you don’t like the law, you change it.”
How does the High Court protect from lower court judicial activism by exercising judicial restraint?
Michael, your thoughts are understandable, but remind me of Tolkien’s thoughts, expresed through the sage Elrond:
“Nay, we cannot use the Ruling Ring.”
Elrond goes on to explain that to use the Enemy’s devices merely replaces him with another despot–in our case with a different letter (“R” instead of “D”?) after his name.
I lived in Ecuador when their congress threw out a president. Everyone knew it was for flagrant corruption, but as the guy was buying votes literally as the minutes passed, and proof of such things requires a break deal of time, they rushed the measure by voting him mentally unfit. It worked, but it threw Ecuador into a period of instability even worse than they had known. After rifling through 3 presidents in short order, all summarily removed for flimsy reasons, they have settled on Correa–a pal of Chavez.
It isn’t just what we do, but how we do it.
While I agree with that sentiment, I am troubled by these statements Roberts made, which seem to be at odds with the concept of judicial activism and at odds with his own statements:
“[T]he 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.”
“It is of course true that the Act describes the payment as a “penalty,” not a “tax.”…But..”
From the dissent:
“But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it
must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’”
“…But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”
…” For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl-
ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1.
Quite an indictment against Roberts, I think.
Read Kennedy’s dissent and you will see why Roberts is dead wrong, whatever his intentions. This ruling effectively removes any and all limits to the power of the federal government. The idea of “limited enumerated powers” is now null and void. The idea that we can “just vote them (congressmen who make bad policy) out of office” sounds nice, of course, but is terribly naive. It ignores the fact that a majority of the populace may be persuaded (by the promise of free or cheap healthcare in this case) to go along with a tyranny that they don;t see affecting them adversely.