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Roberts is a Genius

Roberts is a Genius

June 29, 2012 5:40 am6 comments

This post is predicated on a text message I just received from my friend, to quote: “Roberts is a genius. He punted it to Congress to deal with as a tax issue and curbed further creep of the Commerce Clause.”

Let’s look at what John Roberts did today. Stepping back from whether or not ObamaCare is good policy–and he’s right, that’s not for the court to decide–let’s look at the mechanics in place here.

  • Roberts joined with the liberals on the court (Ginsberg, Breyer, Sotomayor, Kagan) to constitutionally validate the American Care Act (ACA) without some provisions of the Medicaid expansion
  • Roberts defined the “individual mandate” as a tax with the liberal side
  • Roberts and the conservative side held that the Commerce Clause does not Congress the power to compel commerce
  • The court held 7-2 that the government could not coerce the states into accepting the Medicaid expansion by withholding all Medicaid funding

Some excellent analyses I have read (here and here) have confirmed the notion that Roberts’ decision might have “lost the battle but won the war.” In siding with the liberals, Roberts took away the potency of arguments against the partisanship of the court. In upholding the mandate, Roberts recognized the power of Congress to enact policy. In ruling the exercise of the mandate under the Commerce Clause unconstitutional, Roberts provided a key precedent for future decisions limiting the power of the government to compel commerce. In ruling the mandate a tax, Roberts made it very clear that Congress was only exercising its existing authority and has no additional authority. Finally, in rejecting the coercion of states into joining the Medicaid expansion, Roberts upheld what remains of Federalism.

The politics at play behind the scenes must have been bewildering. A lot of moving parts had to come together here, and Roberts played his role expertly. He got the liberals (with the exception of Ginsburg) to join his interpretation of the Commerce Clause and Necessary and Proper Clause as such, presumably in exchange for his endorsement of the ACA. And this interpretation of the clause will survive long after the ACA is repealed in Congress.

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act…Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

This was the most important part of the ruling.  The biggest fear of the ACA was not the socialization of medicine–although that’s a legitimate fear–but the creeping expanse of federal power.  All lovers of freedom should cheer the now-grounded notion that the government at least does not have the power to compel the purchase of a product by a citizen–a truly frightening idea.

Now, this notion could have come across in a majority decision if Roberts had joined the court’s other conservatives in striking down the law.  But here Roberts played his hand very well.  It’s not just about legacy, although he was able to secure trust in the Supreme Court that will be invaluable when, for instance, the Court strikes down the next congressional Obamination.  It’s not a perfect result for conservatives, of course–we would have preferred the entire law struck down because it’s just bad policy–but it speaks to Roberts’ integrity that he is able to ground his opinion in conservative notions of Federalism and judicial restraint (a point made in the dissent as well: “For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it”).  Most importantly, it allows Roberts to continue to guide the Roberts Court for the next couple years–and Roberts himself, whose tenure as Chief Justice will probably last for 30 more years, will certainly reap personal and judicial dividends from his leadership on this issue.

Remember:  Roberts did not endorse Obamacare today.  In fact, he all but calls it bad policy.  Quoth my friend in an email to me this morning:

By sustaining individual the mandate on the basis of Congress’s power to raise taxes, he punted Obamacare back to Congress and gave his permission for the GOP to call it a tax. This should be enough to make every Democratic incumbent cringe. Since inception, the President and the Democratic House leadership have been desperate to avoid calling a spade a spade: that the mandate was a new tax. Roberts prevented them from having their way and ultimately will let Congress decide whether to stay or repeal this new tax.

I am not nearly as upset now as I was when I first heard the decision.  This is not an ideal result for conservatives, but this is not a victory for liberals either.  For most liberals, that there are actual limits on what the Government has the power to do will be a tough pill to swallow.  As George Will writes, “People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.”  Now that has changed.  And that is good news for lovers of freedom.


  • Chris Dorsey

    Interesting punditry. I think you and others are probably going a little too far in trying to articulate what’s going on inside Roberts head with this decision.

    I’m not saying that I think he liked the law, but I think it’s possible that he understood the implications of striking it down and had a much broader consideration of history than just his legacy or the court’s stature.

    I said to a friend weeks ago that if the law was upheld, then Roberts would side with the majority and would write the decision. I wasn’t predicting it would be upheld, I was just saying that Roberts would write the decision. This is probably a no-brainer, but my reason for this is that I think he is invested, not just in the judicial legacy of the court, but he has his eye on what the decisions actually mean for society. He is not an ideological automaton like Scalia and Thomas, he actually recognizes the implications of the decisions that the court makes and is not trying to maintain some kind of legal purity based on a fixed 19th century interpretation of the constitution.

    With that in mind, I think he might (can’t say for certain) but he might have come to the realization that as much as he might have been personally against the law, it was passed by congress and barring a really compelling reason to overturn it, then it was the duty of the court to let it stand. I think that was actually what he said in the decision and I take him at his word on that point. If I’m allowed the same freedom to speculate wildly as you and others have done, I would further say that he also understood that there was not a snowball’s chance in hell that anything that looked like healthcare reform would ever get approved again in the next 50 years and this was as good as the country could get. My final point is that if there was any ideological predisposition at work in his thinking, it was the fact that the individual mandate was actually a republican idea. The republicans have conveniently chosen to forget that simple fact and the individual mandate, while not a libertarian approach, it is certainly an approach that benefits economic stability and is in line with business interests. I don’t think he was acting on this for that reason, but I think it was enough of a reason for him to realize that business interests would not actually be harmed by the individual mandate, despite what tea partiers and republican leaders were trying to argue.

    Roberts may not be the genius you want him to be for the reasons you articulate, but I think he is a reasonable man who at the end of the day knew the stakes and decided to cast his lot in favor of progress so that it didn’t plunge the country into an untenable situation that rejecting the law would have caused.

    • Brian Mayer

      Is it true that he both didn’t like the bill, but decided since there wasn’t going to be any other significant healthcare reform bill in 50 years he decided to let it pass for practical reasons? Obviously we don’t know what he was thinking, but I’d like to give him the benefit of the doubt and the credit at least to base his reasoning on solid constitutional grounds instead of personal preference. I would not say the same for Thomas or Scalia (or Ginsburg, for that matter). Roberts is clearly a man of principle and the principle he chose to exercise in this case was judicial restraint. Whereas he might be a man who “recognizes the implications of the decisions that the court makes” (clearly he’s aware), he is not a man who would rule one way or another in order to affect the history of healthcare in the US. His argument is extremely ideological and straightforward for this reason. The most telling part is the end: “Members of this court are vested with the authority to interpret the law; 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. It is not our job to protect the people from the consequences of their political choices.”

      It’s unfair to categorize the conservative-liberal split on the court as Republican-Democrat. For one, both parties have had major ideological shifts in the last 20 years. Republicans used to be a lot more pro-business than they are today, for instance–now, the pro-business mantle has been taken up by Democrats, and the Republicans are leaning toward libertarianism. But either way, Roberts is not a Republican and neither are the other court conservatives–their judicial interests may align with that party right now, but it is not the job of the court to play politics, another point which the Roberts decision makes eminently clear. I just don’t think Roberts made the call in order to win a victory for a pro-business position that isn’t even held by today’s Republicans.

      Point being, of course the justices are tuned into the political climate, but Roberts, for one, recognizes the court’s responsibility to maintain its independence. That is the strongest message of this ruling–that Roberts would NOT play the pragmatist and he would take up an ideologically solid position regardless of the outcome.

  • Ellis C-R

    Your facts are wrong a little bit. None of the 4 “liberal” justices agreed with Roberts on the commerce clause or the necessary and proper clause. The breakdown of questions essentially was:
    Commerce : 5-4 on partisan lines
    Necessary & Proper: 5-4 on partisan lines
    Tax: 5-4, with Roberts joing the liberals
    Medicaid Expansion Threat mechanism: 7-2 agains, with Ginsburg and Sotomayor dissenting
    Medicaid Threat Severibility: 5-4, with Roberts joing the liberal justices.
    Anti-Injuction Act : 9-0 does not apply

    As to more substantive points: The limit on the commerce clause isn’t substantial, and the court essentially ruled that the power Congress though it had under Commerce does actually exist but ounder Tax and Spending.

    The Medicaid ruling was significantly more important. The Federal government has long been using the stratagem to bully the states around (most infamously to force a national drinking age down our throats.) While as far as I can tell it didn’t overturn South Dakota v Dole which allowed for a certain amount of that, it should hopefully curb further use.

    On calling it a tax, I suppose you can. For what it’s worth, Roberts’ opinion is more complicated than that- it’s allowed under the taxing powers, but the Anti-Injunction Act doesn’t apply because Congress does not view it as a tax- so he didn’t give permission for “Congress” to call it a tax. He kind of said they couldn’t. In any case, Mr. Romney has also insisted that the mandate/penalty schema was not a tax increase when used in Massachusetts, so I’m not sure he really wants to provide fodder for another commercial of him saying the exact opposite things.

    In all likelihood, most people aren’t going to know that deep into the opinion in any case; they’ll just understand that the ACA was upheld.

    You’re still hopelessly hysterical sounding when you call it socialism. Not every thing you dislike is socialism. But I care less about that.
    I’m much more interested in just what this ruling did and did not do.

    • Brian Mayer

      Thanks, I corrected the record. Things were a little confusing.

      The important distinction between granting the “mandate” under the taxing power and not the commerce clause is that the commerce clause has been used in most expansions of federal regulatory power since the New Deal. By limiting the commerce clause, Roberts both signals an end to the abuse of this extremely dangerous practice, and he puts the responsibility of taxation straight on the shoulders of the people where it belongs. Regulating commerce is a lot scarier than taxation. For those of us who DO fear socialism, we are much safer with taxes than with central economic planning, which is what Ginsburg seems to want.

      I agree with you on the Medicaid expansion. Too often people turn to examples of federal power used for good to justify federal power altogether, instead of realizing that our 50 mini republics does so much more to limit power and protect individual rights. I would be curious to see how the conservative wing twists this logic to somehow come out in favor of a federal anti-gay marriage amendment next year.

      Yea, his reasoning on the tax is a little shaky. The government made the case that the mandate is a tax for the purpose of the Anti Injunction Act but not a tax for purposes of the constitution…Roberts made the exact opposite argument. You’re off base when it comes to Romney because Romney in Massachusetts isn’t limited by the constitution’s commerce clause or taxation clause.

      I reserve the right to call any government intrusion on medical freedom the socialization of medicine. Although I didn’t say it was socialism–we’re not there yet. This article gave me great hope:

      I agree, the ACA will just be branded as “constitutional” and that’s that. But the reality of the ruling is much more nuanced, and ultimately, much more powerful for the conservatives in the future. I call it a win-win.

      • Ellis C-R

        Actually, the government also made the “not a tax for the Anti Injunction Act Argument, allowed under the taxing powers case”. It’s one of the reasons people have been apologizing to Verilli.

        My point about Romney stands. It’s not about the legality there, but the politics. If Romney calls this a massive tax increase, and he had a shred of honesty, he’d have to admit he’s been wrong when he has been insisting that it’s not a tax increase in Massachusetts. Otherwise it’s just a stupid game of semantics; it’s the same mechanism. If it’s X in Omaha, it’s X in Boston.

        As to how exactly commerce is limited now, I remain unconvinced. This was unlikely to be an argument the government put forward elsewhere- healthcare is unique- but Roberts completely legitimized the mechanism should they want to. Also Richard Epstein (who, it should be noted, I don’t much like) believes that Roberts just recklessly severed Commerce and Taxation to put a tiny limit on Commerce in a way that greatly increases the Government’s power (