I am trying to make my peace with Chief Justice Roberts’s opinion on ObamaCare. I know this makes me something of a namby-pamby, but I have at least gotten a glimpse of a pony buried under this huge pile of other stuff that the Supremes have now allowed to remain in the federal government’s stable. Here are my rationalizations:
- Chief Justice Roberts did assemble a strong majority in favor of judicially re-writing the law so as to prevent the feds from strong-arming the states into huge and costly expansions in their Medicaid programs . (Let’s hear it for some old-fashioned, bipartisan, judicial activism!) The law would have given the feds the authority to withdraw all financial support for Medicaid to states that resisted the expansion, and a stamp of approval by the Supremes would not only have converted Medicaid into a federal program – it would have established a roadmap for federal takeovers of other functions and programs where states naively accept federal money. All in all, this element of the Roberts ruling counts as a net positive, because it may have prevented both pending and future acts of federal extortion.
- The court did make a big statement on the Commerce Clause: the Individual Mandate is NOT supported by the Commerce Clause. Hereafter, when someone questions whether a new law is constitutionally permissible under the Commerce Clause, a serious answer will be expected, and “Are you serious?” will be treated as the ignorant comment that it is. This represents an epic interruption of a longstanding pattern of degradation of the Commerce Clause.
- The role played by the Chief Justice could go a long way toward re-establishing respect for the court as an “umpire” rather than a player, which apparently has always been at the heart of Roberts’s vision for himself and the court. To all of those progressives, Yale Law School professors, and other fans of “judicial realism” and moral relativism who view the courts as little more than a forum for the expression of the ever-changing political and moral biases of the judiciary, the Roberts ruling is a body blow; the ruling runs directly contrary to Roberts’s apparent biases and preferences and is thus a model of objectivity.
- The American public might not put up with being defrauded like this again. The ruling says the penalty is a “tax” even though the President and the government’s lawyers denied that it is a tax, and there are 18 references in the statute to a financial “penalty” for failure to purchase healthcare insurance, but not a single instance where that penalty is called a “tax.” We even have the spectacle of our Penalizer In Chief, engaging in a series of end-zone celebrations that would embarrass even the National Football League but still being unable to bring himself to refer to the penalty as a tax. From here on, if Congress wants to force us to do something we do not want to do, it will have but two choices: justify its proposal under Roberts’s narrower version of the Commerce Clause, or label its enforcement-mechanism as a tax – and face the gauntlet of the public’s reaction and possible wrath.
Unfortunately, there are major downsides:
- The ruling of constitutionality is a travesty – judicial activism at its worst. The court had to judicially re-write the statute, creating the fiction of a “tax” where none was articulated in the law, in order to arrive at its intended result. By doing so, the court created a roadmap for future abuse. Literally, technically, the Roberts ruling means that the government could enact a law that would penalize you (oops, I meant tax you), not just for doing things you should not (like smoking) but for refusing to do things they think you should (like eat broccoli and work out 3 times a week). Unless there is a Republican sweep in November, we could get lots of broccoli laws and the public’s opposition might no longer matter.
- Regardless of who wins in November, ObamaCare continues at least for now, largely unabated, and will have to be halted by Congress rather than the courts. The biggest part of the new costs that will result from ObamaCare will not kick in for two more years, but the goodies begin right away; by the time Congress tackles repeal and reform, too many people may have been permanently bribed by subsidies and become unwilling to give them up. Here is the best example of such a subsidy: no additional charge for insurance for people with pre-existing conditions.
- A loss is a loss. See End Zone Celebrations, above. This is the biggest downside of the ruling. It is possible that the ruling will cost the Republicans the November elections.
If the Republicans sweep in the November elections and ObamaCare is repealed quickly enough, the court – and the country – may emerge better and stronger as a result of the ruling. Perhaps that is what Roberts had in mind. If so, Chief Justice Roberts was taking quite a gamble, because of the downside: if the Roberts ruling propels the Democrats to victory in November, the potential upsides to the Roberts ruling might never kick in. An Obama victory would probably mean that ObamaCare and the rest of the President’s statist agenda would become permanent and that further discussions of the Commerce Clause would be nothing more than quaint reminders of the country’s glorious past. In that event, history would not be kind to Chief Justice Roberts, who would be viewed as a prissy man whose weakness and vanity put a permanent end to America’s traditional political and economic principles and freedoms. The final judgment might be that Roberts, though willing to engage in judicial activism when it suited certain of his purposes, proved ultimately to be more interested in asserting his – and the court’s – independence and their deference to the will of Congress than he was in saving his country.
Of course if the Republicans do sweep, perhaps they will address economic growth, national security, and meaningful reform of healthcare insurance and Social Security before they get around to thinking about forcing us to swap our Big Macs for tofu-burgers.