It seems only yesterday that liberal pundits and politicians
were proclaiming that a bitterly divided 5-4 decision on the
constitutionality of Obamacare would deny the Supreme Court
“legitimacy.”
Maybe that’s because it was as late as yesterday that liberals
were making this argument. That is until a little after 10 AM, when
a bitterly divided 5-4 Court barely voted to uphold Obamacare — or
as it now should be known given the majority’s seriously flawed
reasoning, Obamatax. Suddenly, a slim majority didn’t matter at
all, as the Court was once again a wise tribunal.
“If they decide this by 5-4,” Yale Law Professor Akhil Reed Amar
told the Washington Post’s liberal blogger Ezra Klein
last week, “then yes, it’s disheartening to me, because my life was
a fraud. Here I was, in my silly little office, thinking law
mattered, and it really didn’t.”
According to the plain language of Amar’s quote, any 5-4 outcome
should have rendered his life “a fraud” and mean that law didn’t
“matter.” Yet, mysteriously no such press release has been released
by his office.
Or take (please take!) the Daily Beast’s
Michael Tomasky, who is infamous for
decrying what he called Americans’ “freedom fetish” and
praising New York City Michael Bloomberg’s soda size ban. In a
June 21 post entitled “America’s Robed Radicals,” he
wrote of the Roberts Court, “The express point has been to
radically remake society, without a hoot of concern about whether
it was being done by five or seven or nine.”
But suddenly when Roberts vindicated a law he favored, it was
Tomasky who had not a “hoot of concern” about whether it was “five
or seven or nine.” Now, it was all about who won the ballgame, no
matter what the score was. “The bottom line is the bottom line,” he
proclaimed a few hours after the decision. “Now [Obamacare] has
teeth, and standing, and the presumption that America should give
it a chance to work.”
Tomasky praised Roberts, as did many other progressive
commentators throughout the day, for making “a legal rather than a
political decision.” He said Obamacare supporters should answer
just about any argument with the rejoinder that “John Roberts is on
our side on this one.”
There are a couple problems with that argument, though, not the
least of which is that Roberts succinctly made clear he was ruling
on the constitutional, not policy, merits of the law. His opinion
declared: “We possess neither the expertise nor the prerogative
to make policy judgments. Those decisions are entrusted to our
Nation’s elected leaders, who can be thrown out of office if the
people disagree with them.”
But the main hole in Tomasky’s argument is that Anthony Kennedy,
who — again just yesterday before 10 AM — was being hailed as the
great “moderate” and “reasonable” hope and who has delighted
liberals with various rulings from immigration to gay rights,
blasted Obamacare’s provisions as constitutional abominations.
“The Act before us here exceeds federal power both in mandating
the purchase of health insurance and in denying non-consenting
states all Medicaid funding,” Kennedy joined with Justices Antonin
Scalia, Clarence Thomas, and Samuel Alito in writing. And Kennedy
also joined with them in declaring that because “these parts of the
act are central to its design and operation, and all the act’s
other provisions would not have been enacted without them … it must
follow that the entire statute is inoperative.” Just what exactly
is it – even if one disagrees with the argument – that makes this
line of reasoning “political” rather than “legal”?!
Roberts’ break from the logic and reason of these conservative
and moderate justices was disappointing, but at risk of sounding
like a cockeyed optimist, there are some silver linings. He seemed
to insist on some concession from his liberal colleagues as the
price for his going along. The concessions were mostly rhetorical,
but in the long run, rhetoric can matter.
Every justice except Ruth Bader Ginsburg joined in Roberts’
ruling that federal mandates punishing economic inactivity, such as
not buying health insurance, cannot be justified by either the
reach of the Constitution’s “commerce clause” or “necessary and
proper clause.” By 8-1, the justices set a precedent affirming
the
arguments of libertarian Georgetown University law professor Randy
Barnett, who is considered the architect of the constitutional
case against Obamacare, that could be used against similar mandates
in the future.
However flawed Roberts’ tax justification is – and it is
extremely flawed – it does put some limit on the government’s power
in enacting such mandates. It means that any punishment beyond
taxation, such as large fines or criminal penalties, would likely
be struck down.
The other concession Roberts seemed to be reaching for is best
called “truth in advertising.” It means that the decision of the
Obama administration to finally admit before the Court that the law
was just one big tax hike will have political costs. Sarah Palin
displayed her rhetorical smarts with her
tweet that “Obama lied to the American people. Again. He said
it wasn’t a tax. Obama lies; freedom dies.”
Similarly, the savvy freshman Rep. Bill Huizenga (R-Mich.) said
in an email yesterday to supporters: “According to today’s United
States Supreme Court ruling, ObamaCare is just a massive tax
increase. The Democrats misled the American people and so did
President Obama about this specific issue.”
Palin and Huizenga are keeping their eyes on the right target,
and advocates of limited, constitutional government should follow
their examples. While we can and should vehemently disagree with
Roberts’ 5-4 opinion, conservatives should not stoop to the level
of Amar, Tomasky, and other Obamacare shills who attack the Supreme
Court’s “legitimacy” if it doesn’t rule their way. The Court was
designed as part of our constitutional system by the Founding
Fathers, and thus can never be illegitimate.
Rather, it’s the legitimacy of those partisan hacks dressing
themselves up as serious Supreme Court observers that now more than
ever is in doubt.
