After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.
But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.
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.
It seems ages ago that President Obama delivered a speech in the early days of his presidency, suffused with self-righteousness and moral demagoguery, announcing he was closing the Guantanamo Bay prison. Unable to resist the temptation to smear his predecessor’s name with distortions and half-truths, the former law professor summoned all his reckless certainty to educate the American people: “Instead of building a durable framework for the struggle against al-Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law.”
So Obama, who supported the Supreme Court’s precedent-gutting Boumediene decision, which granted non-citizen enemy combatants habeas corpus rights, ordered the facility closed. Because that was an obviously empty promise, Obama added another executive order two years later establishing periodic review for detainees at the prison. And then the wheels came off the Moral Authority Express. It turned out instead of bringing enemy combatants to Guantanamo, where detainees are well-fed and have access to attorneys, Obama has been sending them to a disease-ridden hell-on-earth in Somalia. And the Obama administration began urging the Supreme Court to ignore the detainees’ appeals. And now it seems those periodic review boards were–what would the president call them? Just words:
The Obama administration has begun limiting the legal rights of terror suspects held at the Guantanamo Bay military prison in Cuba, telling a federal judge Tuesday the government alone should decide when the prisoners deserve regular access to their counsel.
In a 52-page filing, Justice Department lawyers said they have started restricting when Guantanamo prisoners can challenge their detention in a Washington-based federal court. If approved, any relaxing of the rules would be made on a case-by-case basis at the exclusive discretion of military officials, not by the courts.
In his Washington Post column, Michael Gerson writes this:
Even in a short time, Roberts’ decision has not worn well. What initially seemed wise now smacks of mere cleverness—less a judge’s prudence than a lawyer’s trick. To find the health care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king—hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.
Mike is right on every particular. What Chief Justice Roberts did was supremely arrogant and unwise. Whatever motivated Roberts—he would undoubtedly insist it was his high-minded concern for the legitimacy of the Court; his critics would say it was his concern for winning the favor of the New York Times—he embraced a role that simply was not his to assume.
Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.
They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.
As Peter Wehner notes, now that Chief Justice Roberts has upheld the ObamaCare mandate as a “tax,” the administration no longer views it as a tax. Those finding solace in the fact that the chief justice, while adopting the administration’s extraordinarily weak “tax” argument, at least rejected its Commerce Clause contention, may be surprised to learn the part of his opinion relating to the Commerce Clause did not speak for the Supreme Court.
The official Syllabus notes that “Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit,” and “delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.” Part III-A of the Roberts opinion – concluding the ObamaCare mandate was not valid under the Commerce Clause – was not in the portion of his opinion that represents the opinion of the Court.
The Democratic talking points have been issued and are being followed to the letter (see here and here). And they go like this: The Affordable Care Act (ACA) is not a tax; it’s a penalty. Those who suggests it’s a tax are wrong, in error, disingenuous, and dissemblers.
Here’s the problem, though: characterizing the Affordable Care Act as a tax isn’t simply the interpretation of Chief Justice John Roberts and a majority of the Supreme Court; it’s the interpretation of the Obama administration.
Having already written about the majority opinion by Chief Justice Roberts, what about the politics of the decision?
I have argued before that while overturning the Affordable Care Act (ACA) would be a debilitating blow to the president, upholding it would create problems of its own. And that’s certainly the case.
For one thing, as others at ”Contentions” have pointed out, the president is now saddled with a huge middle class tax increase. Anchoring the Affordable Care Act in the Tax Clause is the only way it passed constitutional muster—and Republicans will do everything in their power to tether Obama to his tax increase. It doesn’t help the president that the argument that saved ObamaCare contradicted what Obama himself repeatedly said, which is (a) the individual mandate is “absolutely not a tax increase” and (b) he would never in a thousand years raise taxes on the middle class.
So we now know Congress cannot make us eat broccoli under the Commerce Clause, but can do so by enacting a broccoli mandate and imposing a failure-to-eat-broccoli tax. The lack of a limiting principle was thought to be fatal to the government’s Commerce Clause argument, but now there seems nothing Congress cannot mandate, as long as it does so with a failure-to-do-it tax. Congress need not even call it a tax, because calling it a tax may preclude it from being enacted. The name given to the ObamaCare penalty was the “shared responsibility payment.”
Who needs the Commerce Clause, with its subtle distinctions between commerce and non-commerce, activity and non-activity, regulation of commerce vs. creation of commerce, when you can simply levy a tax while assuring the public it is not a tax? Congress can enact a “shared responsibility payment” to accompany its mandate, even though Congress has no power under the Commerce Clause — the provision under which Congress purported to act – to issue the mandate, and the mandate thereby becomes valid. You can almost hear the Founders saying, “Are you serious? Are you serious?”
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.
I find it hard to believe the spin that the Supreme Court upholding the health care law is somehow politically better for Republicans because it will “energize the base.” Nullifying Obama’s signature legislative achievement — which he rammed through while the economy was on the brink — would have been a powerful blow to his campaign (and don’t tell me that wouldn’t have galvanized the conservative base just as well).
But there is a silver lining here for Mitt Romney. If the Court had overturned the law in its entirety, Romney would have been under intense pressure to provide a detailed alternative — a challenge that, as David Frum points out, would be difficult enough for him after the election. This would be a far more perilous task during the election, which is why, so far, Romney has avoided it.
In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.
Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.
The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earning income.”
Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.
There are several fascinating and provocative pieces today—among them one by Sean Trende, one by Jay Cost, and one by COMMENTARY contributor Adam J. White—that argue John Roberts’s peculiar opinion in the Obamacare case yesterday is a Machiavellian masterstroke. It is, they say, comparable to the ju-jitsu practiced by the first chief justice, John Marshall, in ruling for Thomas Jefferson’s administration even as he single-handedly raised the Supreme Court to a co-equal check-and-balance on the executive branch, something Jefferson detested, in the 1803 Marbury v. Madison decision.
Roberts himself probably had Marshall and Marbury in mind as he crafted an opinion that seeks to limit federal power even as it allows its expansion in this single case. Which does not change the fact that Roberts’s reasoning is intellectually, ideologically, and legally perverse—willfully so, in fact. And no matter how you slice it, such perversity is not good argument, good intellection, or good leadership by the nation’s most powerful thinker.
Following the Supreme Court’s decision on ObamaCare, a degree of celebration was expected. Many in the pundit class have said the Court’s decision could be the single most influential event on the November election.
After the dust settled and it became clear that the healthcare law survived the gavel, officials in the Democratic National Committee (DNC) and Obama administration went to their computers to let off some steam.
The executive director of the DNC took to Twitter and sent out the following message: “it’s constitutional. Bitches.” The DNC’s new media director vented on Twitter, immediately tweeting, “Overheard in the office: ‘TAKE THAT MOTHER******S!!’” The tweet was soon deleted, but nothing on the Internet disappears completely. Screen shots were taken and that soon appeared on Twitchy, which was then linked to by Drudge.
One might understand this momentary weakness and forgive the total loss of decorum if it wasn’t then replicated by the president’s digital and campaign staff. But it was.
When President Obama spoke in the aftermath of his victory at the Supreme Court, he never mentioned the word “tax.” The ruling that saved his signature health care legislation made it clear his pledge the bill was not a tax was a clear deception. But while not acknowledging that the Affordable Care Act was passed by means of a political subterfuge, he did expressly ask Americans not to “refight the political battles of two years ago.” That was not so much a plea that the debate about the bill not be revisited but a worry that what will ensue will be a rematch of the 2010 midterm elections which were fought largely on the question of ObamaCare. While the president has every reason to exult today, the biggest question about his re-election effort now becomes whether he can indeed avoid a replay of a contest that ended in a rout of the Democrats.
Though the president is the clear winner today, the Court did hand Republicans an issue on which they can put Democrats at a disadvantage. The ruling established that ObamaCare constitutes a massive across-the-board tax increase that will come down hardest on the middle class, a group of voters who the president insists are exempt from his efforts to hike levies on the rich. But GOP optimists need to understand that presidential elections are very different animals from midterms. Although the Court may have helped revive the Tea Party, circumstances have changed since their heyday in 2010. Nevertheless, the stage has been set for the rematch that the president dreads.
“Don’t give them any ideas” may be one of the most overused phrases, but I think, despite its ubiquity, it sums up today’s Supreme Court decision quite well. And it’s why I disagree slightly–perhaps only rhetorically–with John Steele Gordon’s take on ObamaCare’s survival. John writes that the decision today “greatly expanded the taxing power” of the government by ruling the individual mandate is constitutional as a massive tax. It seems, however, that Congress really does have this expansive taxing power to begin with—John Roberts merely “gave them the idea.” It’s best to think of this less as an unprecedented interpretation of existing law and more as an unprecedented application of existing law.
But nonetheless, John’s point is sound. The Commerce Clause of the Constitution was left intact–but also made virtually irrelevant. What the Supreme Court did today was offer a ludicrously simple—and expensive—way around it. Want to force individuals to do something from which the Constitution protects them? Just add a financial penalty to it. This way, you can increase your control over people and help yourself to some of their cash.
For months, as liberals anticipated the Supreme Court would rule ObamaCare unconstitutional, there has been a constant drumbeat of criticism against what they assumed was a conservative majority that would thwart the president’s signature legislation. In particular, Chief Justice John Roberts was the focus of a great deal of uncomplimentary commentary, with many arguing that by leading the Court to the right he would establish a tainted legacy as a partisan judge who had damaged the institution he led. But within moments of the announcement that Roberts had sided with the four liberals on the Court, the “re-evaluation” of the chief justice had begun.
As the New York Times‘s Ethan Bronner wrote in the paper’s Caucus blog, previously, “He was seen by many, at least on the left, as a right-winger more devoted to conservative politics than the purity of the law. That could change.” Count on it.
ObamaCare has lived to see another day. According to the Supreme Court ruling, the only substantial change is that the individual mandate is now considered a tax, something the Obama White House refused to admit it was.
Three hours after the decision was passed down, the Romney campaign’s spokeswoman announced they surpassed the $1 million mark in organic fundraising, mostly from small donors who, after hearing the Supreme Court’s ruling, made their way to the Romney website and clicked “Donate.” The average donation to the Romney campaign was for a little more than $115. As of yet, neither the Republican National Committee (RNC) nor the Romney campaign have sent a fundraising email based on the Supreme Court ruling. If these organic fundraising numbers are any indication, the Supreme Court’s decision on ObamaCare could be the biggest moneymaker for Republicans this election cycle.
That this morning’s ObamaCare decision is disastrous should go without saying. The government’s claim that the mandate is a tax should have been rejected as the Alice in Wonderland reasoning that it is–here’s Obama saying it’s not a tax and here he is saying he’s never raised any taxes–and the law should have been struck down.
Conservatives who are finding solace in potential political implications–that the decision will unite the Tea Party behind Mitt Romney, that Obama will get tagged for increasing taxes, etc.–are setting themselves up for disappointment. As of March, only half of Americans even knew that ObamaCare was still on the books. As of today, they’re going to be bombarded with the message that Obama won, that the Supreme Court signed on to ObamaCare, and that anyway, the issue is closed and we need to be talking about jobs. It’s not clear that Romney should or will move off his all-economy-all-the-time messaging. This morning, he’s at least partly framing the decision in terms of jobs. With the exception of short-term fundraising, it’s uncertain how today’s decision will ultimately impact the election.