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Chief Justice John Roberts, Maker of Lemonade

My initial reaction [1] to John Roberts’s Obamacare opinion was that the chief justice had gotten a proverbial lemon and made lemonade.

[2]

Ambrophoto / Shutterstock.com

One weekend later, I uphold the decision of the lower court that is my gut.

Consider: Most Democrats came away declaring total victory. And commerce clause skeptics like Randy Barnett and Ken Cuccinelli declared, at the very least, a partial short-term victory. Roberts managed to affirm the principles of judicial restraint and deference to the legislative branch, but also drew a line in the sand on further expansions of federal power under the rubric of the commerce clause.

It seems to me that’s not a terrible dispensation of justice.

Yet the blockbuster report [3] by CBS News’s Jan Crawford, which indicated that Roberts had initially sided with the conservatives and later changed his mind, has added a political stench to the ruling.

“Roberts’s opinion is simply not up to his normal high standards and, indeed, engages in sloppy reasoning. Even commentators who agree with his conclusion don’t buy the arguments for it,” writes [4] John Fund at National Review Online.

For example, there’s New York magazine’s Jonathan Chait, who argues [5] that the mandate was more justifiable on Commerce Clause grounds, and that Roberts’s tax-authority fallback is legally tortuous. “If his decision was justice, it was justice of the roughest kind.”

At this point, I can’t imagine any ruling in this case that wasn’t going to feel like rough justice. The conundrum of healthcare politics is that the policy that conservatives would have found legally permissible — taxing everyone directly and providing them health insurance, that is, the Medicare-for-all scheme — is politically impossible.

Thus the mandate muddle.

Roberts’s construal of the mandate as a new kind of “sin tax” that coerces behavior strikes me as the best-possible gloss on this muddle. As Steve Chapman writes [6] at Reason: “[I]f it was going to uphold it, this was the least dangerous method. Allowing it under the commerce clause would have amounted to an open-ended grant of power.”

The Wall Street Journal editorial may thunder [7]: “From now on, Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires.”

Imposing taxes in such an arbitrary fashion does sound scary, but is this a realistic reading of the politics of taxation? Democrats have found it impossible to raise income taxes on the wealthy, for instance. No one questions the constitutionality of a top tax bracket of 39 percent. The problem is that raising taxes is politically radioactive. Indeed this is the reason the Obama administration chose not to make this argument about the healthcare mandate in the first place.

John Roberts has erected a backstop against future regulations under the commerce clause. And he in effect created a fat new target for the likes of Grover Norquist.

Contra the shock-jock Michael Savage, I think the republic is still a long way from Castro’s Cuba.

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#1 Comment By Jim Dooley On July 2, 2012 @ 1:30 pm

C’mon Scott. You’re a writer for Pete’s sake. When someone drop kicks the english language over the wash line to make a penalty into a tax, you gotta show a little agida. People get penalized for failing to do or to perform. People can be taxed with an obligation to perform, but failing to perform, they get penalized. The plain result of this legal hokus pocus is not lemonaide. It is a cloud. The Washington establishments have created a cloud of uncertainty over us all that potentially allows them to directly tax us, some of us, all of us, for anything or for nothing. Confess: last Wednesday, could you ever have imagined, or approved of such a disgusting state of public affairs. What appeals is last Friday’s temporary sense of relief.
It ain’t going to last. As law, Roberts reeled in a fish that is going to smell worse and worse as time goes on. It won’t be as bad as Cuba, but it isn’t as good as it was last Wednesday either.

#2 Comment By Aaron On July 2, 2012 @ 5:32 pm

The heat directed at Roberts, I think, misses the point. There’s every reason to believe that Roberts was prepared to join with what became the dissent – a 5:4 decision imposing the newly created “activity/inactivity” distinction to overturn the mandate and the “preexisting condition/community rating” portions of the ACA while preserving the rest. The dissenters insisted upon overturning the entire law, including provisions already in effect, and Roberts was not willing to engage in that type of activism. He was not going to woo four votes from either side to join his more modest solution, so he chose the more judicially conservative approach to resolving the case.

In other words, Roberts was willing to produce an outcome that would have pleased most of the critics of his eventual ruling, but drew the line at throwing the baby out with the bathwater. It’s fair to ask the dissenters, why did they prefer to let the entire law stand rather than compromising what looks more like a political agenda than a coherent judicial philosophy.

#3 Comment By TomB On July 3, 2012 @ 5:02 am

Aaron wrote:

“It’s fair to ask the dissenters, why did they prefer to let the entire law stand rather than compromising what looks more like a political agenda than a coherent judicial philosophy.”

While I think I understand Roberts’ thinking that led to his vote here and am not too condemnatory of it I think this is wrongly harsh of the dissenters. After all their response would very likely be that if anyone looked to have a political agenda for their vote it was Roberts, the “former” conservative who now might be accused of suddenly allowing the taxing power to go regulating what he’d never have allowed before. And that it sure can look like he did so in an effort to keep “his” Court from looking partisan.

Indeed even you yourself in a past thread can appear to somewhat agree with that view, Aaron.

In short I think one can emerge from reading the opinions in this case without diminishing one’s appreciation for either Scalia and Thomas, and Roberts.

Plus I think one unremarked upon and yet very interesting vote in this case was Kennedy’s. I never gave him much credit before but his thinking here made me wonder if a re-assessment of him isn’t necessary. He was after all very very staunch here. And then in considering his past voting maybe what seemed his apparent inconsistencies before is indeed explained by the strong libertarian tone he demonstrated here. Very strong on not extending the Commerce Clause power, and very very strong on not doing anything that seemed to allow same for the taxing power.

Funny how it can take so long for an accurate picture of a Justice’s mind to come into clear focus.

#4 Pingback By TAC Week In Review: July 1-8 | The American Conservative On July 9, 2012 @ 2:53 am

[…] and remembered Bob Dole. Scott Galupo perceived the real trouble with Obamacare, and upheld the decision of the lower […]

#5 Comment By EliteCommInc. On January 25, 2013 @ 5:04 pm

Given the now, and the tax increases, I find the comments about an inability to raise taxes — funny.

The problem with the elite is that view almost everything through an academic lens.

The entire bill hinges on an unconstitutional bearing — the government cannot force me to buy a product in the marketplace — period. This is not like car insurance where I enter the marketplace and I’m obliged to purchase said insurance — a state mandate —

This is the federal government saying — this product will be good for you — pay of face penalty.

What’s the next the best tennis shoe, tennis raquet, sports club membership. . . the best milk . . .

The problem with the current occupant of the wh is that he behaves and is treated as some manner of social experiment —-

Which is clear sign he should not have been elected and there is still a need to pander to some dominant groupos social sensitivities —-

makes for leadership and policy which caters as opposed to leading.