Roberts Can Be Proud
Having now read the full opinion in National Federation of Independent Business v. Sebelius, as the ObamaCare Supreme Court case is formally known, I think Chief Justice Roberts really did an excellent job in fashioning the introduction to the decision, explaining in very accessible language, as he put it, "In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.... Today the restrictions on government power foremost in many Americans' minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution."
He goes on to express a certain modesty, or "deference," when it comes to the court's own powers: "a general reticence to invalidate the acts of the Nation's elected leaders. ...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."
And he forcefully rejects the government's Commerce Clause rationale for the individual mandate: "Under the government's theory, Congress could address the diet problem by ordering everyone to buy vegetables. ...That is not the country the framers of our Constitution envisioned....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."
Summing up, Justice Roberts writes, "The Affordable Care Act is constitutional in part and unconstitutional in part.... The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgement is reserved to the people."
Compare that passage to what I wrote here on March 17, 2010:
As further evidence that Chief Justice Roberts' opinion was pretty good, look no further than Justice Ginsburg's opinion, which called the Roberts opinion "stunningly retrogressive" and "shortsighted." Justice Ginsburg also slyly mixes in to the presidential campaign, praising RomneyCare's individual mandate: "As a result, federal lawmakers observed, Massachusetts succeeded where other States had failed....In coupling minimum coverage provisions with guaranteed-issue and community-rating prescriptions, Congress followed Massachusetts' lead." Justice Ginsburg also gets cute by quoting, of all people, Robert Bork to the effect that "Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom."
The Scalia-Kennedy-Thomas-Alito dissent criticizes Chief Justice Roberts for turning the Act's "penalty" for not buying insurance into a "tax" for constitutional purposes: "to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g. Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off....Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of the government least accountable to the citizenry."
The Scalia-Kennedy-Thomas-Alito dissent also pointedly notes that "Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional." That seven includes Roberts, Alito, Scalia, and Thomas, together with Kennedy, Breyer, and Kagan. (As I wrote earlier today, "Even Elena Kagan, President Obama's own appointee to the court and his former solicitor general, and Justice Breyer, a former aide to Senator Edward Kennedy, agreed that the Medicaid expansion part of the law was unconstitutional. In other words, one doesn't have to be a right-wing extremist libertarian Federalist Society member to find the ObamaCare law at least partly unconstitutional.")
The Scalia-Kennedy-Thomas-Alito dissent takes aim at Chief Justice's Roberts' refusal to strike down the entire law, and at Chief Justice Roberts' defense of that as "judicial modesty." The dissenters write, "It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court's new design will struggle to retain.... The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court's ruling undermines those values at every turn. In the name of restraint, it overreaches."
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