There are many things to say about the Supreme Court’s final decision on the Healthcare bill (Obamacare). To say that I am deeply disappointed in the decision would be an understatement. However, the real issue with this case and the resolution that was reached is not that I am unhappy with the result, but that the opinion is a quagmire of legal opinions that is Judicial sausage and basically meaningless.
Here is the short summary of the core of the case (the mandate):
4 Justices felt that it should be upheld on Commerce Clause reasons, 5 justices felt it should be overturned on Commerce Clause reasons, and 1 justice felt the law should be upheld on Congress’ taxing power. Yes you read that right 10 opinions 5 for and 5 against. That means someone wrote two opinions and then voted to uphold the law (Justice Roberts…I’m looking at you). Does that seem screwed up? Yes it is. If you don’t care about the ins and outs of the opinion and just wanted my feelings about it, then stop reading you are done.
Here is the longer version:
I feel the law was clearly a Constitutional overreach by the Congress based upon the Commerce Clause, which was the power that Congress invoked to pass the law, a point agreed upon even in the majority opinion upholding the law:
Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.” –(excerpt from Judge Robert’s majority opinion on Mandate, emphasis mine)
That point was contested by the four other Justice in the majority, but agreed upon by the four dissenting Justices. Justice Roberts then joined the four left-wing Justices (Ginsburg, Breyer, Kagen, and Sotomayer) to uphold the law. However, that vote left Justice Roberts needing to explain away why the “tax”, which was called a penalty repeatedly inside the bill, was a tax and not a penalty. This has led to some of the strangest language in the majority opinion that I have ever seen in a legal opinion…writing that is notorious for twisted language and doublespeak:
None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. –(excerpt from Judge Robert’s majority opinion on Mandate – emphasis is mine)
Notice the two highlighted sections. In case your brain melted trying to parse the first portion, let me paraphrase:
“There is no penalty to not buying insurance other than the penalty you have to pay to the IRS”
Got that? No penalty, except the penalty. To make it even richer let me paraphrase the second portion for you:
“There is no penalty, except that Congress wrote the law to say there was a penalty”
Or to paraphrase Obi-wan:
“This is not the Penalty you are looking for”
So we have what is clearly labelled a penalty by Congress, clearly called a penalty within the opinion, but in order to make his case Justice Roberts needs to call it a tax. So why did Roberts feel the need to go to such mental gymnastics? Why did he stretch and bend the language so much to uphold his opinion? I think the answer is held in a passage from the rest of his opinion:
“It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” –(excerpt from Judge Robert’s majority opinion on Mandate – once again, emphasis is mine)
He stated it pretty plainly. In order to avoid making a firm decision on the Commerce Clause argument, which he admits in his opinion he would have to use to overturn the law if viewed that way, the Chief Justice dodged. He decided to avoid making an honest intellectual opinion on the issue of the Commerce Clause and instead twisted himself into a pretzel to uphold the law. Why would he do that if he felt plainly that the law had no basis to be upheld on the Constitutional basis upon which it was argued? The answer to that is also in the above quote:
… it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. –(excerpt from Judge Robert’s majority opinion on Mandate – once again, emphasis is mine)
Here we come to Justice Robert’s primary flaw as a Justice. His firm belief in the legal theory called Judicial Restraint. That is the belief that unless a law is blatantly unconstitutional that a Judge should use the ideals of precedent or Stare Decisis to uphold the laws that Congress has passes. The underlying idea being that if a law is passed by a duly elected body, that it is the duty of a Judge to go to great lengths to uphold that law. Notice my bolded passage in the above quote, “We have a duty”. If you don’t remember Roberts confirmation hearing let me refresh your memory. He talked often about how he believed firmly in precedent and the concept of Stare Decisis. Here is a revealing portion of his Supreme Court nomination hearing in response to a question of precedent and judicial restraint:
Well, again, you would start the precedent of the court on that decision. In other words, if you think that the decision was correctly decided or wrongly decided, that doesn’t answer the question of whether or not it should be revisited.
You do have to look at whether or not the decision has led to a workable rule. You have to consider whether it’s created settled expectations that should not be disrupted in the interest of regularity in the legal system. You do have to look at whether or not the bases of the precedent have been eroded. –(Chief Justice Roberts during his Supreme Court nomination hearing, emphasis mine)
Throughout his hearing Roberts came back to that idea of regularity in the legal system. This is the core of why he did not want to overturn the law on Commerce Clause grounds and instead chose a questionable “levy taxes” justification for the law. To come down hard on a Commerce Clause ruling would force the courts to revisit most of the rulings that have greatly expanded Federal jurisdiction and power since the Great Depression. Overturning the precedent set in Wickard v Fillburn, which set in stone the modern regulatory powers of Congress under the Commerce Clause and has been the basis of most regulatory court decision since. Opening a Commerce Clause Pandora’s Box would “disrupt the regularity” of the legal system. Basically, in the language of the playground, Roberts is a “Big Old Chicken” who “Pussied Out” of making a real decision. To use another common phrase he is trying to “have his cake and eat it to”.
But wait, I can hear my left of center friends crying, “what about Citizens United”? Where was the Judicial Restraint there? Some quick differences. First, the McCain/Feingold law that was overturned in CU had been stated to be unconstitutional when it was signed into law. Remember the infamous G.W. “I know it’s unconstitutional and I expect the Supreme Court to overturn it” signing statement? Second, the law had never been firmly established into the “law of the land”. Third, there were conflicting court rulings about Free Speech and Money in politics. Fourth, many organizations and any individuals could spend unlimited amounts of money on campaign advertising even while the law was in effect. Fifth, when a Solicitor before the court states that they could ban books before an election, the law is going to be declared in opposition of the First Amendment, period. So Roberts could rule clearly on Constitutional matters and would not upset the “regularity” of the legal system.
To sum up: The Roberts opinion that turned this case is not a large surprise coming from a Justice who places too high a value on Judicial Restraint, Precedent, and Stare Decisis. There is no grand conspiracy to his opinion. He wasn’t worried about the image of the court, he wasn’t threatened into it by the administration, and he isn’t playing a grand GOP reelection strategy. Judicial Restraint, that is all. Bad decision…even worse opinion upholding that decision.
PS – The real irony is that to even consider the mandate at all, the Court had to decide that it was not a tax and therefore could be reviewed before any taxes had ever been levied:
“Today, the Court held that the AIA does not bar the challenge to the individual mandate because the mandate is not a “tax” within the meaning of the AIA.” – from this article