I will grant that the opinion written by Chief Justice John G. Roberts, Jr., which upheld the Affordable Care Act (ACA) as constitutional based not on the Commerce Clause but instead on Congress’ power under the Taxing Clause, was clever. Even, in some respects, ingenious.
Roberts achieved a liberal end, upholding the ACA, while also employing conservative arguments and affirming conservative premises—including imposing limits on the Commerce Clause, finding that the Necessary and Proper Clause cannot be used as a stand-alone justification for a statute that is not otherwise justified by another enumerated power, and declaring that Congress cannot use its spending power to coerce state participation in federal schemes. Something for everyone.
Conservatives who are (justifiably) upset with Roberts’ decision shouldn’t understate Roberts’ contribution to conservative jurisprudence. As a good friend put it to me, these three premises are absolutely central to contemporary conservative legal thought—and those arguments are now effective law. For example, his dramatically narrowed reading of the Commerce Clause is now binding precedent. This is no small achievement. Lower court judges cannot countermand it unless the Supreme Court itself does so in a future case. And this particular Court, at least, is unlikely to do that. In that respect, then, Chief Justice Roberts moved the Court in a rightward direction—and, his defenders will say, he did so by showing self-restraint and without igniting a political war.
Perhaps. But in the end, Roberts decided the case wrongly—and one cannot help but believe he did so knowingly.
It seems clear that what animated Roberts’ decision was his determination to (in his mind) protect the reputation of the Court by preventing it from overturning the signature domestic achievement of the Obama administration. If the Supreme Court had overturned the Affordable Care Act, it would rank among the most significant (and controversial) cases in American history. Roberts, a man with modest, institutionalist tendencies, did not want to emblazon the Affordable Care Act in government textbooks forever more.
Which makes his decision understandable—but still, in my mind, ultimately irresponsible. Roberts decided on a pre-ordained outcome; he would uphold the Affordable Care Act by essentially re-writing it—an unusual approach for a man who has in the past insisted that it’s inappropriate for the Court to legislate from the bench.
The main challenge Roberts faced was to jerry-rig a (Tax Clause) argument to get him to where he was determined to end up. He employed specious, result-oriented reasoning in order to achieve an unprincipled—but for him, an institutionally desirable—outcome.
It was simply not his place to do this. And on what may have been the most important decision he is ever called upon to write, John Roberts produced a political, even disingenuous, and too-clever-by-half opinion. (Consider the withering dissent by Justices Scalia, Kennedy, Thomas and Alito to be mandatory reading. “What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution,” according to the four Justices. “That carries verbal wizardry too far, deep into the forbidden land of the sophists.”)
Chief Justice Roberts put what he perceived to be the interest of the Court ahead of his fidelity to the Constitution. He ended up doing damage to both.
While it is nice that the misuse of the Commerce Clause that has occurred over several decades may now be somewhat reined in by this decision, the federal government putting its hand in your pocket and forcing you to purchase something you may not wish to buy is the abuse of power from which the American people genuinely needed protection. And in that respect, the Supreme Court was no help. It is of little relevanve just which constitutional peg is used to hang Congress' hat on in the passing of this aggregious legislation, the unreasonable encroachment into peoples' legitimate prerogatives remains. In his wish to burnish the Supreme Court's reputation, I'm not sure Chief Justice Roberts kept this in mind.
Well said. There is no silver lining. The holding on the Commerce Clause only limited its very, very outter limit. It is still a massively overexpansive basis for federal power. What Roberts did was find a whole new basis for going beyond what you can't do under Commerce. He did not do anything that upset any other law on the books. Bottom line is the feds have much more power after this decision than before it. If conservative legal scholars see that as a victory, they just fell in love with their arguments and missed the real issue. If the court just needs to keep coming up with new basis for federal power in a 50 year game of wack a mole, the whole "legal theory" approach is a joke. All that really matters is winning and keep power and passing and maintaining legislation by any means necessary. Roberts has blessed this lawless re-affirmation of Leviathan.
If the government can require someone without health insurance to pay a special tax, it can require people who are refuse to eat brocoli to pay a special tax. It doesn't matter what section of the constitution the court bases this right on, it still means the government can financially penalize someone for refraining from engaging in desired behavior.
The Chief Justice's "irresponsible" decision? His decision is far better described as "criminal" or even "treasonous".
Strong words, perhaps too strong, although I feel in agreement. All I would add is that the same adjectives apply to the other four justices in the majority.
Good point!! The "liberal" justices are even worse, especially Ginsburg.
Treasonous is not too strong a word. If Roberts main concern was to "protect the reputation of the Court", then this one man out of 300 plus million decided to care about, not the 300 million +Americans, but only about himself and destroyed our Constitution in the process. It is ruinous!!It is unbelievable and this country will never recover. We will be Europe.
Can someone tell me whether Robert's majority opinion has the concurrence of the liberal justices and hence their agreement on the limits of the Commerce Clause?
I think not. I think only the conservatives joined that part. Another reason why the commerce clause part was not that significant (the main one being he just came up with an even "better" argument that does the same thing, or even more). I would welcome anyone to correct me on this.
most of the libs are newbies and most likely contributed little of subtance to the majority opinion.
This is the second time in my long lifetime that a Supreme Court decision has really got me excited. The first time some years ago made me happy as can be. It kept Al Gore out of the White House. This time, here's hoping it will kick Obama out. Pray and vote, patriots.
Roberts hold do us all a favor and resign from the court. He is a cretinous, lying coward.
Related questions: nI thought tax bills had to originate in the House. Could the bill be called unconstitutional because it originated in the Senate? n nIn the future, is there any way to insure that bills that use this tax strategem are labelled tax bills.
The law doesn't matter, Roberts just makes it up anyway.
There is still a silver lining to the extent that we take the process of putting people in positions of power more seriously. We as voters collectively elected an ideologically-driven, inexperienced and unproven individual to be our President. At the same time we gave a party committed to growth and expansion of government clear majorities in both houses of Congress (I know that readers of Commentary and readers of this blog were not among the culpable). In his remarks Justice Roberts made clear that he does not see it the duty of the Supreme Court to save us from ourselves. Our votes count and they should have consequences. n nThere are those who believe there is not much difference between Republicans and Democrats. The "independent voters" who believe that and those who do not pay much attention hopefully will now take the responsibilities of citizenship more seriously.
Well, we goof in almost every election. In 2008, VERY BADLY. We'll see in November whether enough people (with consciences and brains) care enough. I learned as an enlisted man in the U.S. Navy for 4 years that authority and government are not to be respected – except in rare instances.
On 29 June 2012 at 4:02 pm, nhrds asked: “Can someone tell me whether Robert’s majority opinion has the concurrence of the liberal justices and hence their agreement on the limits of the Commerce Clause?”
In my preceding post I give a link to the opinions of everyone on the court. The liberal justices views are included in Justice Ginsburg’s views, which I have skimmed but not read carefully. Their views apparently disagree with most of Justice Roberts’ views (including about the Commerce Clause), but my understanding is that his views become the Supreme Court’s decision because a total of five justices voted for them as a package.
Roger Folsom
Roberts might have gotten himself into the history books anyway–just not the way he'd perhaps like to be remembered. n nHis solicitude for the Court's reputation is understandable. However, if striking down laws–any laws–that clearly violate the Constitution is not the job of the Supreme Court, what is the purpose of judicial review?
And, I might add, what did Roberts get for his trouble? n nHe gave Obama and the Dems a huge present–didn't even bounce ACA back to Congress so they could rewrite it to pass Constitutional muster–and now they're all swearing it was never a tax! n nAfter all his efforts, the people Roberts tried to placate are kicking him in the teeth!