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.


toe 1 year, 9 months ago

It will still be possible to avoid. You can invest in municipal bonds in states that avoid the expanded medicare. The coupons are not taxable income. You can avoid paying the penalty outright. There is no enforcement tools other than withholding refunds. You can go to other countries for elective medical care. If you get sick here, just show up at an emergency room. They will still have to take you. You can transfer the majority of your assets to other or a non-revokable trust to avoid any claims. You can reduce your income to poverty levels when you need to buy insurance and the government will cover it with a voucher. You can enter a private cooperative. Marry a Native American. They are exempt. You can start young by joining a religious order than is exempt under the law. May have to be a member a while to qualify, but freedom of religion may trump Obama care, unless the Robert's court is still in power.


BornAgainAmerican 1 year, 9 months ago

"Americans will have health care in spite of you baa."

I sure hope so, but pretty sure it won't be Obamacare after November.


woodscolt 1 year, 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.


BornAgainAmerican 1 year, 9 months ago

Obamacare would not have been passed had Obama and his minions allowed these penalties to be called taxes I am told that there are actually 21 taxes in the ACA and 14 of them fall on the tax payers who earn less than $250 K/year. It's gonna' be expensive folks. How will the Dims defend this during the run up to the November election? They may have won the battle, but lost the war. I predict that the election will be hard fought and look close until the independents actually go to the polls and finally decide that the Tax and Spend Dims are not the answer to our continuing financial problems. Romney will win in a landslide. 2010 dejavu all over again


Milton Bland 1 year, 9 months ago

Of the three branches of government located in D.C., the supreme court was the only one left with the public's faith and support. According to the idiot "newscasters" and commentators like Krauthammer, Roberts was concerned about protecting the stature of the court. That is a load of bs. Roberts was grandstanding. His smirky smile was on loan from George Bush as he appeared for the decision. To me he came across as someone playing "gotcha" with the media who announced the decision incorrectly in order to be "first" regardless of the accuracy of reporting. I have always felt our country would be ok with a stupid president and a looney congress as long as we have genuine patriots on the supreme court. But what Roberts did was lower the court to the gutter with the rest of the DC politicians. He put his legacy above his country and his need for the spotlight above the constitution. It really doesn't matter whether it is called a tax or a penalty. The results of Obamacare will be the same; lack of medical professionals, long waiting time for medical help, and for those of us over 65, we might as well crawl off and die when we feel ill because Obama has decided we are not worth saving. We are totally screwed, America! I am glad I grew up in the 50's and 60's. And now I sure feel badly for the younger folks who will never live in a country they can enjoy and feel proud to be a part of.


hotmess 1 year, 9 months ago

Roberts is ok in my book. He outed the true underpinning of the bill: taxes.


just_another_bozo_on_this_bus 1 year, 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 1 year, 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.


grammaddy 1 year, 9 months ago

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


Getaroom 1 year, 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.


FalseHopeNoChange 1 year, 9 months ago

You are 'stretching' for the "Silver Lining" Kraut. Face it. Roberts is a complex 'closet' Liberal like "Tricky Dick" Nixon was.

You should be happy that the pothead "Choom Gang" Leader is happy and leave it at that.

Obama Sees Middle Class Tax Increase as a Victory

Posted 06/29/2012

The Largest Tax Hike in US History has just been upheld by the Supreme Court of the United States and President Obama sees this assault on the middle class as a victory. The already unpopular 2010 health care reform law has been converted by the court into a $1.76 trillion tax increase funded by escalating taxes to be paid the vast majority of taxpayers. The high court’s ruling leaves in place 20 tax increases in the health-care law, of those, 12 tax hikes would affect families earning less than $250,000 per year, including a “Cadillac tax” on high-cost insurance plans, a tax on insurance providers, and an excise tax on medical device manufacturers. By formally converting ‘Obamacare’ into ‘Obamatax,’ the court allows Obama to raise taxes on the middle-class. The decision is a distressing blow to taxpayers and (represents the single largest tax increase on young people in the nation’s history). When it takes full effect, the Internal Revenue Service will have immense new power and authority to persecute and prosecute a whole new group of taxpayers.

(from the source)


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