Why Did Justice Roberts Do It? The Silver Lining
Lots of back and forth today on why Justice Roberts did what he did. I think Charles Krauthammer has it right:
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.
It’s true. It is our job. If the court had overturned Obamacare, the issue would be off the table for the election. As it is, four months left to go and Mitt Romney raked in over $2.5 million today after the Supreme Court decision (Update: As of 8:00pm Central, Romney had raised 3.2 million today). Ted Cruz, our Senate candidate here in Texas, said that right after the announcement of the Supreme Court decision they got a donation every TEN SECONDS even before they asked for any.
I call that a fired up base. You know what a fired up base does? They elect a new President.
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If a law that is drafted on unconstitutional grounds, it really isn’t the courts job to make it constitutional (it really should send it back to Congress to decide how to do that). That said, it wouldn’t be first, or worst, over reach by the Supreme Court.
I thought it was up to the Court to decide whether a law was “drafted on unconstitutional grounds” — or not. The Court in this case apparently decided that the law was drafted on Constitutional grounds.
Otherwise, they would have declared it Unconstitutional.
Am I missing something here?
My understanding is the court is supposed to look at what what it does not what the label says. If they had called it a tax and that you got a “tax break” if you had insurance then there would of been no question of the constitutionality of that aspect of the ACA. The mandate works exactly as a tax does they don’t have to do anything to it to make it a tax because that is what it always was just with a different name.
“My understanding is the court is supposed to look at what what it does not what the label says.”
In considering the mandate’s constitutionality the Supreme Court considered both the Commerce Clause argument and the taxing and spending power argument which,by the way, had been raised repeatedly and one which “the government continued to press, however, and in the end it carried the day.”
Again, am missing something here?
Re: http://healthaffairs.org/blog/2012/06/28/the-supreme-court-on-the-individual-mandates-constitutionality-an-overview/.
The constitutional basis for the law goes to what the intent of the law was and legally regulation of interstate commerce doesn’t necessarily have the same consequences as a tax. (For example, is the money charged now something that is considered a “tax” for those who pay taxes in two countries and need to know what they were taxed for and they weren’t?) For example, one of the right wing blogs has a quote were Obama insists most specifically that the law wasn’t a “tax”. Suppose you pass a law and convince someone to vote for it on basis that it isn’t a “tax”. The supreme court then says “oh, sure we will decide it is a tax to make it constitutional”. That person might well decide his intent in voting was violated and the courts aren’t suppose to change Congressional Intent.
It isn’t the first, or worst, time the courts have played fast and loose with Congressional Intent, but it is one.
Re the tax… I read somewhere that the “penalty” was paid to the IRS. Though I’m not sure if that is written into the law at the moment. Anyone know?
And if it’s paid to the IRS, wouldn’t that make it a tax? Or at least have a case for the penalty being a tax? After all if I were to receive services I’d have to pay a tax on those services…. And if you receive healthcare then wouldn’t you pay some sort of tax?
It’s not like the penalty going to the Department of Health and Human Services or some other department.
Anyway… I ask since I don’t know…. this isn’t my area of expertise. Thanks-
As far as a fired up base… I won’t hold my breath. They can donate now and be done with their donations for the next four months. There’s only so long a fired up base over a single issue… which is ruled legal and constitutional…. can stay fired up.
I’d like to remind you of the 2004 election where there was a fired up base (liberal) because of Bush’s actions…. which DID violate laws, treaties, common sense, morals, etc…. and yet he stayed in office. Though he used fear to get people to vote for him, just like the Republicans today are using fear to motivate people.
I wish people would use their heads and common sense to vote, and not let fear sway their judgement.
SBLA, and oddly enough, Romney is about as uninspiring as Kerry. Two prime examples of blandness.
There’s a bit of illogic in Krauthammer’s comment:
there are plenty of taxes that are punitive, regulatory, & intended to compel. Shall we start with cigarette taxes? They are punitive. Corporations have to pay collages of fees that are regulatory. Compelling? Tax breaks for insulating your home (basically a tax on NOT doing so if you’re the one not getting the break.
Here’s the reason for this tax: it’s basically a freeloader’s fee. Someone has to pay for that, and why should it be me? (Although it see,s the tax is cheaper than actually buying coverage, which will incentivize freeloading which will turn the system into single-payer soon enough).
This was always set up the exact same way as a tax, handled by the IRS, etc. Heck when it was passed that was one of the complaints was that it was a hidden tax. I’m not a fan of the ACA but SCOTUS isn’t supposed to be about popularity or even about what would be best for the country. It should be about the law.
“For example, one of the right wing blogs has a quote were Obama insists most specifically that the law wasn’t a “tax”. Suppose you pass a law and convince someone to vote for it on basis that it isn’t a “tax”. The supreme court then says “oh, sure we will decide it is a tax to make it constitutional”. That person might well decide his intent in voting was violated and the courts aren’t suppose to change Congressional Intent. ”
Again, ACA was argued as a tax.
Again, see here:
In considering the mandate’s constitutionality the Supreme Court considered both the Commerce Clause argument and the taxing and spending power argument which,by the way, had been raised repeatedly and one which “the government continued to press, however, and in the end it carried the day.”
Re: http://healthaffairs.org/blog/2012/06/28/the-supreme-court-on-the-individual-mandates-constitutionality-an-overview/.
This HCR is hardly what Krauthammer and McKinley seem to think it is. It’s certainly far, far from the progressive legislation they imagine it to be. That said, it takes almost nothing for republicans to get freaked out anymore.
Dorian,
Every justification I ever heard was the claim based on the interstate commerce clause. Obama specifically denied a tax and I’ve never heard any Democrat saw it was before this week. That said, maybe the claim was buried somewhere in the arguements. I’m a little doubtful, but if it was, then it would make Robert’s ruling less of a stretch.
Now if Obama and leadership had told the fellow congressmen “its not a tax” and then put “it is a tax” to justify its constitutionality that raises some questions. Is it the court’s job to worry if the argument before them isn’t the same as the one given to the Congressmen who voted for it? I really don’t know.
Mr. Verrilli [the U.S. Solicitor General who argued the case before the Supreme Court] …managed to answer the justices’ questions, at one point asking to return to the tax argument that ultimately proved the ground for upholding the mandate. Mr. Verrilli believed that his argument that the penalty for not obtaining health insurance was a tax and not a forced purchase, even though it was a secondary point in his defense, could be the lure to bring along Justice Anthony M. Kennedy and perhaps Chief Justice Roberts as the narrowest way that the conservative justices could uphold the law.”
http://www.nytimes.com/2012/06/30/us/in-health-ruling-vindication-for-donald-verrilli.html?ref=politics
In considering the mandate’s constitutionality the Supreme Court considered both the Commerce Clause argument and the taxing and spending power argument which,by the way, had been raised repeatedly and one which “the government continued to press, however, and in the end it carried the day.”
http://healthaffairs.org/blog/2012/06/28/the-supreme-court-on-the-individual-mandates-constitutionality-an-overview/.