Thursday, June 28, 2012
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.
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