Roberts finesses health care decision

June 30, 2012


— It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?

“The Framers ... gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result -– a 5-4 decision split along ideological lines that might be perceived as partisan and political.

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’ 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.

— Charles Krauthammer is a columnist for Washington Post Writers Group.


Getaroom 5 years, 9 months ago

I see, you like it when Roberts rules based on your Ideology and don't like when he doesn't. Both you and the Kraut have swallowed the poison and believed the lies as always you and have deluded yourselves and worked against your best interests. Keep it up please!
It's a tax!! Lions and tigers and bears!! Of course it'is !! But not in the way you believe it to be. Faux Nuz started right in on it as usual and are making fools of themselves. The Conservatives have nothing to offer, except to do more of the same. It's so obvious how desperate you and they are in struggling to see how this can be spun into more lies. It's so funny as FN trots out their show ponies only to make absolute fools of themselves. Frankly, it's very entertaining and so clearly ignorant at the same time. You deserve what you get.

Maddy Griffin 5 years, 9 months ago

How is the Obamacare "tax"any different than the witholding for SS and Medicare?

Keith 5 years, 9 months ago

I don't care if you "Shout 100%", it's still errant nonsense.

jafs 5 years, 9 months ago

The difference is that this "tax" only applies if you don't purchase a product from a private company.

As far as I know, there is no other tax on such activity, or rather lack of activity.

It opens the door to taxing you if you don't buy a tv, or a cup of coffee, etc. Doesn't that seem absurd?

If they had simply expanded Medicare to cover everybody, and increased the withholding, it would be more properly called a tax, in my view.

Cant_have_it_both_ways 5 years, 9 months ago

Hippies might just have to become dippies now. Better start practicing your bathing skills, put on clean underware, you never know when you are going to have to see a Doctor. While you are at it, empty the bucket on the back of your truck.

woodscolt 5 years, 9 months ago

"Cant_have_it_both_ways" therefore it must be cant's way. If "Cant have it.." it's way then you get this underhanded personally insulting rant from cant. Your laughable in your immaturity but at least you represent most of faux news right wing well. You could always change to "Can only have it my way" because that is what a democracy is all about to you. You know, your rant speaks more about who you are than whomever you think you were describing.

Cant_have_it_both_ways 5 years, 9 months ago

I am so glad we have people like you that are so caring and generous with everyone elses money. Try this, quit taking money away from little old widow ladies who cant afford to run their airconditioners and give it to vagrents and other able bodied people who choose to mooch off of others.

woodscolt 5 years, 9 months ago

Once again you are amusing with your My way is the only way. If you weren't so busy making stuff up and believing your right wing myths, you would know that "the little old widow ladies" (hope fully they aren't hippies) you are so worried about would be exempt from paying any penalties based on their income, however, they would be eligible for health care through The Affordable Care Act that you wish to take away from them. Cant have it both ways so you would advocate taking these "lttle old widow ladies" health care away from them. Your just brilliant.

just_another_bozo_on_this_bus 5 years, 9 months ago

More likely, he couldn't figure out any legitimate grounds to scrap the whole thing, and doing away with only the mandate would be bad for the insurance companies, and pissing them off would be bad for the Republican Party.

Cant_have_it_both_ways 5 years, 9 months ago

Along these lines, I believe that the tie breaker for Roberts was getting back to Obama for all the scorn, counceling, and utter dis-reguard for the rule of law. When the all shakes out, I would be very willing to bet that Obama and many of the Dems that voted for this bill, will be defeated soundly. This is an attack on the middle class. The poor will always get it free, the rich either pay for it now or will pay a reduced amount, and those of us in the middle class just took a huge pay cut. All you corporate welfare types just gave those corporations a huge influx of cash as they will drop their quality healthcare coverage for the fine and save huge amounts of money. I am wondering how or if dental care is included in this bill as we have heard very little about it.

woodscolt 5 years, 9 months ago

gallup poll: 46% in favor of scotus ruling: 46% opposed:

woodscolt 5 years, 9 months ago

"I am told" says baa (by faux news no doubt.) How about just getting over it and quit wining. Americans will have health care in spite of you baa.

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