In yesterday’s Wall Street Journal, Georgetown law professor Randy Barnett provided a concise summary of the “saving construction” Chief Justice Roberts used to uphold the Obamacare statute. By changing the requirement to buy insurance into an option to pay a penalty, and by making the Medicaid mandate on the states optional as well, the Chief Justice created a revised law he could then deem constitutional. As Prof. Barnett wrote:
By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”
So what was saved — in the cause of judicial restraint — was a statute judicially re-written, materially different from the one Congress wrote. No one knows if Congress would have passed the rewritten statute in the first place, had it been presented in the form that emerged from the Chief Justice’s opinion: the number of uninsured people covered, the financial cost of the law, and the likely impact on health care are all different from the law Congress enacted. Moreover, in the process, the Chief Justice endorsed a new shared responsibility payment power for Congress that we may see again in the future.
In the current issue of Commentary, Tevi Troy in “The ObamaCare Debacle Deepens” demonstrates that:
Quite simply, the Roberts opinion took a bad bill and made it worse. If ObamaCare continues to exist in the form Roberts has devised, with much of the mechanism for funding its requirements stripped out, the consequences for the country and for our health-care system may be even more disastrous than they would have been had the problematic law simply been allowed to stand as it was.
But at least the Chief Justice preserved the reputation of the Court from criticism for judicial activism — what a former University of Chicago law school lecturer alleged would have been “an unprecedented, extraordinary step” if it were to “somehow overturn a duly constituted and passed law.”
The fear of such criticism may have been exaggerated: the same week that the Court upheld Obamacare, it overturned a total of 32 out of 33 state and federal statutes — every one of them a duly constituted and passed law. The Court’s reputation apparently suffered no significant damage from enforcing the Constitution in those cases, and in retrospect if might have been better, as Tevi Troy’s essential article shows, if the Court had applied the Constitution to the 33rd as well.