You’re Right, John Roberts, But That’s Not The Issue

“It is not our job to protect the people from the consequences of their political choices.” – John Roberts, National Federation of Independent Businesses v. Sibelius

On Thursday, the Supreme Court of the United States released its decision on National Federation of Independent Businesses v. Sibelius, more popularly-known as the Obamacare ruling.  In brief, the Supreme Court was asked to decide on the constitutionality of two key provisions of the Patient Protection and Affordable Health Care Act.  The most ballyhooed of these was the so-called Individual Mandate, which levied a penalty on individual citizens who did not purchase health insurance.  The other was whether the Federal Government can withhold Medicaid funding for states that choose not to expand Medicaid to cover a new category of citizen.

The majority opinion, written by Bush-appointee Chief Justice John Roberts, determined that the Individual Mandate was, indeed, constitutional.  The reasoning behind the majority opinion is quite interesting.  While it constitutes a defeat for the majority of Americans who do not like Obamacare, the ruling carefully stipulates that the Individual Mandate is not supported by the Constitution’s Commerce Clause:

The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Because so much of our freedom depends upon our economic choices, and because virtually every economic choice we make is in a market that is national or international in extent, any decision that reigns in Congress’ power under the Commerce Clause is a victory for individual liberty (see, for example, George Will’s column).  However, the Chief Justice, having determined the unconstitutionality of the Individual Mandate under the Commerce Clause (in contradiction to Representative Nancy Pelosi’s assurance), stipulated the following:

And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.

In other words, if the Court can find some other means by which the law is constitutional, it must do so.  Here, the Chief Justice (in good company with other Courts, as Roberts cites Justice Story and Justice Holmes for support) takes a very restrictive view of the Court’s role.  That is, it should defer to Congress (and therefore to the People) to write laws unless a clear violation of the Constitution is evident.

The majority finds that the Individual Mandate can be viewed as a tax, and therefore, not relevant to the Commerce Clause.  In this, Obamacare is supported despite President Obama’s insistence that the Individual Mandate is not a tax, and therefore that Republicans’ complaint that Obamacare represented a massive tax increase was incorrect.  In this, the majority has adopted the Duck Theory: if with swims like a duck and quacks like a duck, it’s a duck.  Since the penalty for noncompliance with the Affordable Care Act was collected by the Internal Revenue Service, the penalty was really a tax.

I may have more to write on this logic later.  For now, I want to comment on something else.  What I want to comment on is the quote I began with.  Roberts’ quote here is brilliant, but also disingenuous.  He notes that the Court must not interfere with legitimate legislation, which is the constitutional purview of Congress.  I agree.  He notes that the Affordable Care Act can be overturned by future legislation.  I agree.  He notes that the congresspeople who passed the Affordable Care Act can be turned out in the next election cycle.  I agree.  He notes that the Court may find something constitutional without finding that it is good policy.  I agree.

And so I title this post “You’re Right, John Roberts, But That’s Not The Issue.”  The Court’s job is not to protect the people from the consequences of their political choices, but it is disingenuous to assert that this is the issue.  Our political choice was based upon lies.  We were told that the Individual Mandate was not a tax.  We were told it was a regulation of commerce, consistent with the Constitution.  We found out the truth a bit late in the game (Representative Pelosi promised that we would know the contents of the bill once it was passed).  It’s bait and switch – we were defrauded by our Congress, and defrauded by our President.

The Chief Justice may still be right.  Perhaps the judiciary can’t protect us even from being lied to and defrauded.  Perhaps our only remedy is the one the Framers certainly provided for us: throwing the bums out of office.  But don’t cover your own ass, Chief Justice, by implying that we got the law we deserved based on our political choices.  We got defrauded, and we hoped that at least one of the three coequal branches of government would eschew mendacity and, to paraphrase Ronald Reagan, preserve for us the freedoms that were intended us by the Founding Fathers.


  1. Steve Burri · · Reply

    Excellent commentary.

    I know it seems always the case that the upcoming election is the most important evah! But, with this November it does appear to be one of most important in American history.

  2. […] everything he wants.  Tax the rich.  Cap and trade.  Nix the Keystone pipeline.  Enforce the taxes on the middle class embedded within the Affordable Care […]

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