This was a patchwork quilt decision.
The reporting that it was a 5-4 decision with Roberts siding
with the liberals is somewhat inaccurate. The Justices went every which
way, and the majority opinion written by Chief Justice Roberts represents those
issues where a majority agreed. But what Justices were in the majority
differed issue by issue.
The Court held, apparently unanimously, that the
Anti-Injunction Act (a Federal statute that bars lawsuits on taxes until after
the tax has already been paid) did not prohibit this lawsuit from
proceeding. They differed as to why, but the result was the same.
The Court held, with Roberts and the conservatives in the
majority and the liberals in dissent, that it is unconstitutional to mandate
economic activity and punish noncompliance with penalties. According to
the conservative majority, the commerce clause is not that broad and far
reaching.
The Court held, with Roberts and the liberals in the
majority and the conservatives in dissent, that it is reasonable to construe
the mandate-and-penalty found in the Obamacare law in the individual mandate
not as a mandate-and-penalty but as a criteria for a tax. Roberts
reasoned that the benign nature of the so-called penalty (no criminal
enforcement and levies associated with failure to buy insurance) coupled with
the fact that the “penalty” was to be paid as part of your income taxes to the
IRS all together made it reasonable to construe that as a tax and not a penalty
despite the plain language of the statute to the contrary. He reasoned
that if a statute is subject to multiple reasonable readings, and one of those
readings gives constitutional grounding where the other does not, the court
must construe the statute in the light that renders it constitutional.
The Conservatives on the other hand held it was unreasonable to construe the
statute against its plain language and to do so is impermissibly re-writing the
statute. To them, it was not whether Congress could have acted
constitutionally, but whether in the statute before them the in fact did act
constitutionally. Because Roberts believed it reasonable to read the
statute as assessing a tax on the uninsured, he viewed that as a constitutional
use of the Congress’ tax power.
The Court held, with Roberts, the conservatives, Breyer and
Kagen in the majority and only Ginsburg and Sotomayor in the dissent, that
Obamacare’s expansion of Medicaid that required all states to comply with the
new regulations or lose all Medicaid funding that they had previously qualified
for under pre-existing law to be unconstitutionally coercive.
The Court held, with Roberts and the liberals in the
majority and the conservatives in dissent, that the Medicaid issue was
severable (meaning it can be cut out without striking down the entire Obamacare
law).
As you can see, the Judges were swinging their alignment
issue by issue.
The Taxing Power Does Have its Limits.
Casting this as a tax puts the healthcare law in a
precarious position, in my opinion. Robert’s interpreted the penalty as a
tax because several factors were missing that, in his view, form the substance
of a penalty. If any of those elements show up later, the question of
whether the penalty morphs back into a penalty is wide open. On such a
showing, Roberts would agree with the conservatives that the
mandate-with-penalty should be struck down. Right now, Robert’s views
this as a tax on your choice to not have insurance similar to the government
taxing your choice to smoke. But if the amount charged rises high enough,
or if they add other sanctions to your choice of not being insured, then
Roberts would likely take a different view of it being merely a tax.
This Decision was not the Result of a Last Minute-Change
on Robert’s Part.
The decision, including Robert’s opinion, Ginsburg’s
dissenting opinion, the conservatives’ joint dissenting opinion, plus Thomas’
separate dissent all together form 193 pages. Each group’s opinion
responds to arguments raised by the other groups. The Conservatives’
dissent picked apart Robert’s opinion concerning it being reasonable to
construe the mandate and penalty as a tax. Roberts, in his own opinion,
responded to their argument. On the issue of the Commerce Clause’s scope,
Roberts and the conservatives in their respective opinions are pointing out and
disagreeing with Ginsburg’s arguments to the contrary. This body of work
was a collaborative effort weeks in the making that all the justices had
opportunity to read and respond to.
Additionally, once all the justices are done with their say,
it is delivered to the clerk for publication, and it is the clerk’s office that
writes the syllabus summary of the outcome that appears at the top of the
opinion. This opinion in its totality represents too much work for
someone to have caved-in to remarks made this week by the President or others.
Some theorized yesterday that Roberts switched late because
it appeared Scalia’s dissenting opinion was written as a majority
opinion. An example is that he sometimes refers to Ginsberg’s opinion as
a dissent. In fact, sometimes Scalia was in the majority because of the
patchwork nature of this decision. On the issue of the scope of the
Commerce Clause, Ginsberg was the dissent, and it is in that context that he
refers to her as such. I believe these theories were born of a
first-glance reaction to a large and complex decision.
Chief Justice Roberts thoughtfully arrived at his error, had
his error challenged by fellow conservatives, and found their arguments
unpersuasive.
Roberts is not the Smartest Guy in the Room Two Steps
Ahead of the Rest of Us.
It has also been theorized that Chief Justice Roberts has
some sophistry in mind, and he is masterfully working some grand scheme that we
don’t all understand just yet. As much as I want to think well of the
man, I reject the notion that his opinion is laced with undisclosed
subtlety. It is what it is. He believes what he believes, and he
has put to paper his thoughts. If he were a designing man, he needed only
to side with the conservatives to kill Obamacare. If he were to do so, it
is Kennedy, and not Roberts, who would have been the brunt of the reaction, for
Robert’s position on the matter was a foregone conclusion in the minds of most
of the public: conservative and liberal alike (excepting of course those rare
few who called it as it occurred). Justice Kennedy was considered the
crucial swing vote.
This argument would have more weight if Kennedy had swung in
favor of Obamacare. Then it could be argued that Roberts, knowing they
had lost anyway and wanting to do damage control, sided with the majority
merely to assign to himself the task of writing the opinion and controlling how
far off the tracks the train raced. But that is not the case. If
his intention was to save Americans from Obamacare, he would have done so by
siding with the conservatives. He didn’t. And he stated
quite plainly that as long as he can find a constitutional basis for the
statute to stand, it is not the Court’s job to save us from our own political
decisions. That is up to us.
There is a Bigger Danger.
Now that the initial shock of Robert’s stance is wearing
off, and now that I have read his decision and that of the conservative
dissent. I see a far bigger danger. No conservative argued that as
a tax, the individual mandate would still be unconstitutional. There is
only a hair-breadth of difference between Robert’s view and that of the other
conservatives (was it reasonable to construe the statute as a tax). That
hair-breadth of difference, however, made a dramatic difference in outcomes in
this case.
Scalia seemed to concede that if Congress had merely passed
a tax on the uninsured using all the same criteria laid out in Obamacare, then
it would have passed constitutional muster. In his view, though, Congress
didn’t, and it wasn’t up to the court to rewrite the statute for them to make
it constitutional. Roberts in reaction viewed it as inappropriate to
boldly strike down the law over a label. The alarming thing to me, is
that no conservative sees this law as unconstitutional in effect, just most of
the conservatives believed they didn’t go about it quite right. In other
words, make a few semantic tweaks, and the conservatives would have had no
argument against it.
That is a very dangerous place to be in. We now have a
blueprint in this decision of how to regulate most things by taxation with
unanimous consent of the Court. Written into the premise of these
opinions are most of the things that have derailed in Constitutional
jurisprudence where it comes to taxes and commerce. It is impossible
therefore to rely upon the Court to defend constitutional liberty in a manner
consistent with our views when they are so heavily laden with precedent that
they feel they cannot get around.
What is the Solution?
The Court is always the weakest branch of government, and
despite popular belief, never has the final say. The final say is always
with the people and their elected representatives.
The Court has a history of taking language of the
Constitution, and where understanding differs, wrestling with what the words
were meant to mean. We have a decision tree handed down to us over
centuries where precedence ropes us into an unpleasant corner inconsistent with
our views of how the Constitution should have been interpreted. But we
must be honest about the fact we have lost those cases, and we are where we
are.
When you are dissatisfied with how a judge reads particular
language, what is the cure? Provide clearer language. I believe
therefore we should harness the present outrage, not only to repeal Obamacare
(which is merely the present symptom of the problem), but to cure the
disease. I propose a “Tax and Commerce” amendment to the US Constitution
along the following lines:
-----
Section 1 - Congressional power to regulate interstate
commerce is limited to regulation of the channels of commerce, products or
transactions that actually cross state lines, and persons while engaged in
those transactions.
Section 2 - Congressional power to tax and spend for the
general welfare is limited to the furtherance of an enumerated power of the
Federal Government.
Section 3 - Congress may not condition any tax on, or any
expenditure to, persons or states based on criteria that it does not otherwise
have authority to demand from among its enumerated powers.
Section 4 - Congress must adopt an annual budget, without
which Federal expenditures may not be otherwise authorized, and which budget
must be, except during states of war declared by Congress, in balance each year
between revenue and expense. During declared states of war, only
expenditures expressly for the declared war may exceed budgeted revenue.
When the United States carries debt, the annual budget approved by Congress
must have more revenue than expense, with the excess revenue appropriated to
debt reduction.
Section 5 - Any taxation of the citizens of the United
States must be equally apportioned by State according to the census. The
Sixteenth Amendment to the United States Constitution is hereby repealed.
Section 6 – All pre-existing statutes to the contrary will
be void two years after final ratification of this Amendment.
-----
It is clear to me that the Constitution no longer serves as
a barrier to the kind of tyranny reflected in Obamacare. Through such an
amendment, we should directly take on each area of egregious departure from the
Constitution’s original intent and set the train back on the tracks.
Through such an effort, you take the fight straight to the source. The
most attractive elements for state ratification lie in the release of Federal
mandate (and therefore freeing of state budgets) that would occur if such an
amendment were passed. The idea needs refining, but I’m convinced this is
where we should go as Americans. We have a political opportunity to make
this a reality. And as of yet, the RNC has not yet prepared the national
Republican platform.
Albert L. Ellison, Chairman
Bastrop County Republican Party
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