Wednesday, July 04, 2012
Conservatives are apoplectic that John Roberts, Chief
Justice of the Supreme Court, sided with the liberal wing of the court in
largely upholding the constitutionality of The Affordable Care Act (ACA). Their
rhetoric has been filled with invective and they have described Roberts as “a
traitor to his philosophy” who is “forever stained in the eyes of
Conservatives.” His opinion has been called “the worst kind of judicial
activism” and characterized as “a 21st century Dred Scott decision.”
You get the picture. In joining the majority in upholding
Obamacare, Roberts has become the Benedict Arnold of the Bench.
To my friends on the right, I say, “Enough with the
hyperbole. Take a breath. Chill out! Roberts is not guilty of the perfidy of
which you accuse him and he has given us a great gift for the coming election.”
And before we go further, let’s make one thing clear. In
ascending to the Supreme Court, John Roberts did not take an oath to advance
the cause of conservatism or the agenda of the Republican Party. He did not
agree to become a judicial activist for the Right. He took an oath to uphold
the Constitution. The role of the Court is to interpret the Constitution, and
in the Obamacare decision, he has made a good faith, well reasoned, carefully
considered attempt to do just that. The fact that we may not agree with the
outcome he reached does not make him a traitor or some kind of a two-horned,
one-eyed judicial activist. Surely there is room for honest disagreement within
conservative ranks. And is charity not one of the virtues we extol?
Conservatives should take heart from Justice Roberts’
explication of Congress’ power under the Commerce Clause of the Constitution.
That clause has provided the pretext for an incredible expansion of the federal
government into the lives of its citizens. Roberts, however, dismantled the
government’s argument that the ACA represented an appropriate exercise of power
under the Commerce Clause and its kissing cousin, the Necessary and Proper
Clause, which gives Congress the authority to do those things necessary and
proper for carrying out its enumerated powers.
Rejecting the ACA’s individual mandate provision as an
appropriate exercise of Congress’ authority to “regulate” commerce, Roberts
ruled that a consumer’s “inactivity” in failing to purchase health insurance
could not be equated with the “activity” of purchasing it. In the absence of
such commercial activity, Congress had nothing to regulate. Additionally,
Roberts ruled that Congress’ passage of the ACA was not a “proper” exercise of
its authority under the Necessary and Proper Clause. In so ruling, Roberts
affirmed the importance of the Tenth Amendment and struck a blow for the rights
of the states and their people to be free from unwarranted and unconstitutional
intrusion by the federal government.
The real rub for conservatives is that Roberts found that
Congress had the power under the Taxing and Spending Clause to enact the
individual mandate required by the ACA and to financially penalize those who do
not purchase health insurance under the new program. In doing so, Roberts
looked beyond the euphemistic form of the language Congress used to describe
the consequences of failing to make such a purchase (“shared responsibility
payment” and “penalty”) to the substance of those consequences. He then called
what he perceived to be a spade a “spade,” denominating it a “tax.” In doing
so, Roberts found that portion of the ACA to be a proper exercise of the
Congress’ taxing authority, and therefore, constitutional.
In reaching his conclusion, Roberts acted in accordance
with historical precedents which provide that when a statute is capable of two
interpretations—one of which would result in the statute being unconstitutional
and the other of which would result in the statute being constitutional—courts
should indulge the interpretation which favors constitutionality. In other
words, courts should show deference to the people’s elected representatives and
not be too eager to invalidate laws passed by them by declaring them
unconstitutional.
Roberts also pointed out that there is a remedy for those
who don’t like Obamacare, namely an election. If people don’t like Obamacare,
if they think it is a socialistic, job-killing, tax-hiking, economy-stifling
program that America can’t afford, if they think it will degrade the quality of
medical care in this country, they can throw the rascals out who passed it and
elect a new set of rascals who will repeal it. That’s what democracy is all
about.
Elections have consequences, and John Roberts is
absolutely right that is not the role of the Court to protect the people from
the consequences of their political choices. That’s what judicial activists do.
They invalidate legislation based on whimsy and substitute their own fanciful
ideas about what’s prudent for that of our elected representatives. Judicial
activism short-circuits the democratic process and puts power in the hands of a
judicial oligarchy. Roberts has not engaged in judicial activism. In this case,
he has left the power make change in the hands of the people. So if you don’t
like Obamacare, do something about it. Stop whining and get off your duff and
go to work to elect those who will repeal it. And for goodness’ sake, get off
the back of John Roberts. He doesn’t deserve our derision.
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