How the Court Made a Bad Bill Worse

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.

0
Shares
Google+ Print

How the Court Made a Bad Bill Worse

Must-Reads from Magazine

Michael Flynn and the Conservative Spidey-Sense

Trouble from minute one.

Something was off about Michael Flynn, the retired Army lieutenant general whose brief tenure as Donald Trump’s first national security adviser has landed him in legal hot water. Flynn promoted the so-called alt-right. He dallied with Vladimir Putin and the Kremlin propaganda network RT (formerly “Russia Today”). And his anti-Islamism too often became indistinguishable from bigotry against Muslims. Yet Trumpian hard-liners adored Flynn, while the softer Trumpians in the GOP establishment suppressed their Spidey-sense and played down criticism of the general’s judgment.

6
Shares
Google+ Print

Maybe We Should Just Shut Up?

A preventable tragedy?

For millions of earnest and frustrated Americans, there is no justice today. Not in California, at least.

18
Shares
Google+ Print

What Tillerson Got Right

Calling out genocide.

The New York Times on Thursday reported that the Trump administration is preparing to oust Secretary of State Rex Tillerson in the coming weeks. The White House and the State Department denied the story, which was sourced to unnamed senior administration officials. “Secretary Tillerson enjoys this job,” a State spokesperson told reporters. “He has a lot of work to do.” Even so, rumors of Tillerson’s imminent departure have been swirling in Washington for months. The former Exxon Mobil CEO reportedly takes a dim view of Donald Trump, and the president has in turn undercut Tillerson’s diplomacy with his wild tweeting on more than one occasion.

4
Shares
Google+ Print

The Coming Entitlement Reform Panic

An avoidable crisis.

Despite its unpopularity, the tax code overhaul seems to have enough Republican votes to pass in the Senate. After almost a year of comic pratfalls in Congress, the GOP is set to realize some of the agenda on which its members campaigned over the course of the last half decade—campaigns that won them total control of the federal government. Republicans shouldn’t expect any laurels for their efforts. Things are only going to get harder from there, particularly if they move on to the next logical and most urgent phase of the Republican Party’s long-stated mission: reforming entitlements. Already, the journalistic and Democratic political establishments are stoking as much consternation over that necessary project as possible.

34
Shares
Google+ Print

Are Trump’s Tweets Helping the Tax Bill?

Podcast: Crazy like a fox?

On the second COMMENTARY podcast of the week, we ask whether the constant swirl of dust around the president might actually be helping the Senate Republicans convince members to vote for tax reform because they are not constantly center stage as they were during the repeal-Obamacare debate. And we wonder whether Nancy Pelosi has brought a Democratic Tea Party down on her own head. Give a listen.

4
Shares
Google+ Print