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The Spectacle Blog
There has been some counterintuitive analysis suggesting John Roberts is an evil genius and today’s health care ruling is a hidden conservative victory. Here’s one example from Jay Cost on the right:
First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power….
Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn’t think we could have one without the other, but now maybe we can.
Here’s another example from Ezra Klein on the left:
But by voting with the conservatives on every major legal question before the court, [Roberts] nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
I’m as pleased as anybody about the commerce clause jurisprudence here, but there are two obvious problems with this argument. First, you have to find an actual expansion of government that will be prevented by the commerce clause precedent but is not permissible under Congress’ taxing power. Maybe such an expansion will be proposed, and certainly the taxing power has a much bigger political downside than regulating imaginary interstate commerce. But right now, that’s a highly abstract proposition in exchange for upholding one big, very real expansion of government.
Secondly, Roberts had an undeniable chance to strike down the mandate and even the whole Affordable Care Act. All he had to do was vote with Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sam Alito. Instead he chose to rewrite an existing constitutionally problematic statute in a way that allowed it to narrowly pass constitutional muster. That’s not judicial restraint. Moreover, if Congress and the president can assert an unconstitutional power to claim something isn’t a tax, and then have it re-labeled a tax by the Supreme Court, that undermines the political limits on the taxing power.
Until you can find a real-world expansion of government power worse than Obamacare that this decision would enjoin, it seems that Roberts’ conservative defenders are being too clever by four-fifths.
View all comments (10) | Leave a comment
More Blog Posts by W. James Antle, III
http://spectator.org/blog/2012/06/28/now-weve-got-obamacare-support
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C Bowen | 6.28.12 @ 4:35PM
The cry to Impeach Just-us Roberts is underway.
Conservative Inc. better find some more capable defenders then the first round of spinsters.
spike59| 6.29.12 @ 5:47AM
i'm not about to go down the road of the whining left ('screech to impeach' whenever the SCOTUS rules contrary to my opinion)
it's juvenile, futile, and is a diversion from what's important; namely, defeating the Obamessiah, capturing the Congress, and replacing this monstrosity with an approach that makes actual sense
RJ| 6.28.12 @ 4:46PM
I don't see the opinion as restricting the Commerce Clause, because those comments are dictum; not necessary as part of the court's ruling. Further, the government's power to tax seems to be much less restricted than previously understood.
There are many past Supreme Court opinions which have expanded the powers of government, so I am not surprised that a justice could string together past precedent to uphold ObamaCare (although the opinion's reliance on the taxing power is a surprise). Nonetheless, the essential purpose of the Constitution is to place substantial limitations on the Federal Government's authority and jurisdiction. Presently, there aren't many limitations remaining. A sad day for many of us, but this decision may cause a strong political backlash in the November elections. I am sure there are many vulnerable Democrats running for office whose campaigns just got a lot more difficult.
Occam's Tool| 6.28.12 @ 4:48PM
Bowen: you know I generally despise you.
But there is no silver lining here except that it may propel Conservatives into office in the majority in the 2012 elections. Romney has stated that he will sign the repeal bill when it hits his desk. We shall see, but it is the only hope we have.
John Navratil| 6.28.12 @ 5:45PM
OT,
Here's hoping! If the $10/hour workers knew what was in store for them, they would be up in arms.
C Bowen | 6.28.12 @ 6:05PM
The feeling is mutual of course.
The point, tactically speaking, is to not fall for the Repeal/Replace rhetoric. Conservatives have to demand a one-page bill that reads, the Affordable Care Act is hereby repealed, and vote on it.
Replace it with nothing. By the law of Congress, whatever they replace it with will be worse then even Obamcare.
CJW| 6.28.12 @ 7:57PM
Even if Roberts added a restriction on the Commerce Clause, he expanded the power to tax.
And the power to tax is worse because the IRS will slap a lien, sell your assets, and throw you in jail.
We wanted to limit the power to tax by having a flat income tax or a national sales tax. Instead we now have a tax of not purchasing insurance.
Roberts is no evil genius, just another wimp Republican who acts conservative to get the job then evolves into a liberal.
Obama did not justify his law as a tax, and Roberts should not have re-written the law for him.
Oldefarte| 6.28.12 @ 8:44PM
Well these black-robed fools term homosexual immorality as MARRIAGE, so why not call this un-affordable welfare a TAX? Makes sense to me!!!!!!!!!!!!!
Vance P. Frickey| 7.4.12 @ 11:45AM
Roberts was on the side of Congress - even when they got it wrong. While I don't even play a lawyer on TV, my memories of high-school Civics tells me that something as badly flawed as Obamacare ought to have been sent back to Congress to be fixed.
Roberts' exegesis of Congressional intent - that all along they intended to levy those six or seven different taxes on the people in order to enable "affordable care" is so highly counter-intuitive as to serve as an illustration for what the term "counter-intuitive" means.
For an ostensibly conservative Chief Justice to have opened the gates so wide to would-be taxers makes no sense at all... but his statement that the Supreme Court doesn't exist to save the public from Congress does serve to explain what he did - more than any other possible explanation.
If conservatives are intelligent enough to exploit Roberts' explanation and can find someone good enough at communicating it to the voters... "this is what happens when you put liberals in Congress... " good might come of it.
Viewed that way, Roberts' decision is the greatest step away from judicial activism imaginable. The Chief Justice held his nose and stoutly refused to correct Congress' mistakes, leaving law-making to law-makers.
It's a remarkable contrast to President Obama's inability to take Congress at its word and do his Constitutional job of executing Congress' will, and in that sense Roberts' decision is a mute reproach to Obama as Chief Executive.