For the last week, I've been listening to talk radio and reading articles on the internet, trying to see if my initial opinion of Chief Justice John Roberts would improve. It hasn't.
Remember that Roberts served in the Republican administrations of Ronald Reagan and George H. W. Bush before he was appointed to the D.C. Circuit Court of Appeals and the Supreme Court by George W. Bush. In the late 1990's, he was a member of the steering committee of the Federalist Society's Washington chapter, an organization that is typically associated with an originalist interpretation of the Constitution. Remarkably and incongruously, he joined with the four liberals on the Supreme Court to allow ObamaCare to stand, betraying conservatives with a confused, contradictory, and inconsistent decision, reeking of cowardly political expedience.
Regarding the conservative effort to overturn the law, as the Wall Street Journal noted on the day after the ruling:
The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties.
The emphasis of the challenge to ObamaCare was the individual mandate, with the government arguing that Congress had power under the Commerce Clause of the Constitution to require everyone to buy health insurance. Roberts (and four dissenting justices) rejected that argument, because the mandate compelled commercial activity in order to regulate it. Instead, he awkwardly and erroneously decided that the mandate could stand as a tax imposed by Congress using its constitutional taxing power, even though the law was unambiguously structured as a regulatory penalty.
Richard A. Epstein, a law professor at New York University and a senior fellow at the Hoover Institution, wrote in the New York Times that this was "a confused opinion," a restraint on federal power without real restraint.
In an ironic twist, the chief justice simultaneously accepted the conservative argument that Congress's power to regulate interstate commerce did not include the power to regulate economic inactivity, like a decision not to purchase health care.
But what Chief Justice Roberts took from Congress with one hand, he gave it with the other: a broad reading of the taxing power… He will no doubt attract praise in some quarters for splitting this baby.
But his decision is wrong. As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice's position in such an important case is confused at its core.
[T]axation and regulation are close substitutes, so a limitation on one power matters little if the other power is still available. There is no practical difference between ordering an action, and taxing or fining people who don't do that same thing. If the Constitution limits direct federal powers, it must also limit Congress's indirect power of taxation.
Chief Justice Roberts has ignored this fundamental principle: If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold). This is a baby that should not be split. His attempt to do so undermines his ruling, the court and the Constitution.
John Yoo, a law professor at University of California at Berkeley, who served in the Bush Justice Department, echoes Epstein's outlook in the Wall Street Journal.
The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power… Worse still, Justice Roberts's opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.
Like the justices who caved in to Franklin Roosevelt's New Deal programs under the political pressure of his notorious court-packing plan, Yoo writes:
Justice Roberts too may have sacrificed the Constitution's last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.
Noah Feldman, a professor of constitutional and international law at Harvard, agrees with his colleagues above that conservatives have reason to be disappointed with the ruling from both the tax angle and the Medicaid perspective.
Roberts's opinion will not have the dramatic conservative effects that are being claimed for it.
On the surface, this looks like a win for conservatives and a restriction on Congress' commerce power. It isn't. The reason isn't that the four conservatives, including Justice Anthony Kennedy, deliberately chose not to join Roberts's opinion (maybe because they were angry at him for breaking ranks). It is that in the real world, as opposed to the realm of legal theory, there is no meaningful difference between action and inaction.
If Congress wants to penalize you for not doing something in the future, it can impose a tax. And as Roberts's ACA decision affirmed explicitly, Congress doesn't even have to call it a tax. In short, in practical terms, Congress has no less power than it had prior to the decision.
It is true that this part of the ACA ruling marks the first time the court has ever struck down a congressional act that conditioned funding on the states taking some action.
Congress must not issue a threat to the states that amounts to what Roberts called "a gun to the head." This does constitute an outer limit on Congress's power -- but it is hardly a very important one. It is hard to think of a case where a state could not be bribed rather than blackmailed.
The chief justice's gestures toward conservatism were just that -- symbolic gestures to soften the blow.
The Wall Street Journal further criticizes this vast new taxing power. Roberts did not concoct a brilliant judgment; he failed to safeguard liberty when the legislative and executive branches exceeded the limits of the Constitution. In order to salvage ObamaCare and find it constitutional, he effectively rewrote the statute that Congress passed, creating a tax that exceeds the limits of the Constitution, while producing a large loophole for Congress to use in the future for indirect regulation.
By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.
It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.
His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax.
Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law… ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.
Indirect taxes—"duties, imposts and excises"—are taxes on activities and products… Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.
America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.
The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population.
But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."
The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.
In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.
The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.
Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes… His ruling, with its multiple contradictions and inconsistencies, reads as if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.
But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.
Thomas Sowell, senior fellow at the Hoover Institution, expands on the betrayal of current and future Americans by Roberts.
The legislation didn't call it a tax, and Chief Justice Roberts admitted that this might not be the most "natural" reading of the law. But he fell back on the longstanding principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of "deference" to the legislative branch of government.
But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious: that Obamacare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?
These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States.
One of the chief justice's admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story.
What he did was betray his oath to be faithful to the Constitution of the United States.
Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath — and retaliation — of those in Congress who have been railing against justices who invalidate the laws they have passed… But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.
So - what happens next, and what should we do to reduce costs in our health care system? Reject the Medicaid Expansion, aggressively campaign against ObamaCare in the 2012 elections, and fight to remove the government influences from our health care.
The Court ultimately decided that Congress acted constitutionally in offering states the Medicaid Expansion funds in exchange for expanded coverage, but a state can refuse to participate without losing all of its Medicaid funds. Two justices voted to uphold the expansion in its entirety, four voted to strike the entire expansion down, and three voted to strike down only the provision allowing the withholding of federal funds from states that reject the expansion. Therefore, the two and the three combined for a 5-4 ruling to effectively rewrite the law (again) to create an opt-out for the states instead of throwing out the entire law as unconstitutional.
While it reduces the number of uninsured Americans, the Medicaid Expansion will eventually lead to billions of dollars in extra costs for the states in the future, and they should choose to opt-out. Charles Ornstein at ProPublica (an independent, non-profit newsroom that produces investigative journalism in the public interest) questions whether states will refuse to participate.
Republican leaders of some states already are saying they are inclined to say thanks, but no thanks.
Stanford University health economist Dr. Jay Bhattacharya wrote on Stanford's medical school blog that some states may opt out. "Cash-strapped states will almost certainly consider this option since they will ultimately be on the hook for financing at least a portion of this expansion," he wrote. "If enough states decide to deny the Medicaid expansion, this may substantially reduce the ability of ACA [the Affordable Care Act] to expand insurance coverage."
Under the law, the federal government would cover nearly 93 percent of the costs of the Medicaid expansion from 2014-22, according to the Center on Budget and Policy Priorities.
Pollster Scott Rasmussen writes that ObamaCare is on "life support" despite the Supreme Court's ruling.
Fifty-four percent of voters nationwide still want to see the law repealed. That's going to be a heavy burden for the Obama campaign to bear.
It's hard to believe that public opinion will change between now and Election Day because opinion on the law hasn't budged in two years. In fact, support for repeal now is exactly the same as it was when the law first passed.
Consistently, for the past two years, most voters have expressed the view that the law will hurt the quality of care, increase the cost of care and increase the federal deficit.
[K]eep in mind that most Americans initially supported the concept of health care reform because they wanted the cost of care to be reduced. But only 18 percent believe the current law will accomplish that goal.
The president believes that government regulation can control the cost of care, but most voters disagree. Voters think that consumer choice and competition between insurance companies will do more to reduce costs than additional regulations.
Yaron Brook, the president of the Ayn Rand Institute, describes the real problem and the real solution with our health care system. The rising prices for health care developed from increased government involvement, as it transitioned from an individual's economic responsibility to a third-party-payer and entitlement system. Only 18% of Americans believe that ObamaCare's regulations will reduce the cost of care, so there remains a mandate for conservative Republicans to repeal this law legislatively now that the Supreme Court has failed to do so.
Our private, market-based health care system has led to spiraling prices, and so we need government to step up to the plate and bring health care within our reach. That, anyway, was the claim we heard during the debates over Obamacare.
But prior to the government's entrance into the medical field, health care was regarded as a product to be traded voluntarily on a free market…
Today, what we have is not a system grounded in American individualism, but a collectivist system that aims to relieve the individual of the "burden" of paying for his own health care by coercively imposing its costs on his neighbors.
The result of shifting the responsibility for health care costs away from the individuals who accrue them was an explosion in spending.
In a system in which someone else is footing the bill, consumers, encouraged to regard health care as a "right," demand medical services without having to consider their real price.
The solution to this ongoing crisis is to recognize that the very idea of a "right" to health care is a perversion. There can be no such thing as a "right" to products or services created by the effort of others, and this most definitely includes medical products and services. Rights, as our founding fathers conceived them, are not claims to economic goods, but freedoms of action.
American health care has needed reform, but what it has needed is not more government intervention but less.
In the two years since ObamaCare was signed into law, I've believed that Republicans should make this the primary issue in the 2012 presidential election, even above the weak economy and rising national debt.
Conservatives have public opinion on their side when it comes to the concepts of limited federal government and federalism, and the considerable opposition to ObamaCare in battleground states will be a significant problem for Obama's reelection campaign. Republicans will be united in opposition, and polling shows that independents will be less likely to support Obama because of the law.
Before Super Tuesday at the beginning of March, when the Republican presidential nomination was still undecided, I tried to make the case that Rick Santorum would do a better job than Mitt Romney on this principal issue. Like most conservatives, I hoped that the Supreme Court would decide that the entire law was unconstitutional, so we didn't need to rely on Romney to try to make the case against it in the general election.
As the architect of its template, how could Romney lead the conservative fight against ObamaCare when he was the first American political leader to impose a health insurance mandate in Massachusetts? Like Santorum, I am also concerned that Romney could collapse in a health care debate with Obama, and conservatives will ultimately give away this fundamental individual freedom issue in the election.
But this post isn't about Romney – he is our candidate, for better or for worse. We need to continue to push him towards sponsoring cost-saving, constitutional alternatives to ObamaCare, based on free markets and personal responsibility.
Apparently, we also need to push him towards nominating justices who wholeheartedly believe in originalism, and will rule solely on what the Constitution does say instead of what it ought to say. Right now, if you go to Romney's website and click on "Courts & The Constitution" (under "Issues"), you will see that:
Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito…
The judges that Mitt nominates will exhibit a genuine appreciation for the text, structure, and history of our Constitution and interpret the Constitution and the laws as they are written.
After last week's ruling and legislating from the bench, it is hard to agree that Roberts fits the mold of a judge who interprets laws as they are written.
The average age of the last ten Supreme Court justices to retire from office (or to die in office in the case of Rehnquist) was almost 80-½ years old on their last day on the Court. That means we will likely have Roberts on the bench for another 20 to 25 years, and the winner of the 2012 presidential election may get to choose up to four new justices – to succeed two of Clinton's appointments (Ginsburg and Breyer) and two of Reagan's appointments (Scalia and Kennedy).
Though Romney will struggle to lead the conservative fight against ObamaCare for the next four months, conservatives must keep up the pressure to repeal the law and to prevent the reelection of Obama.
