There has been much gossip and speculation written over the last 48 hours about Chief Justice John Roberts’ unexpected decision to cast the tie-breaking 5-4 vote to uphold the constitutionality of President Obama’s Affordable Care Act. In these polarized times, for such a reliably conservative judge to act in such an ideologically unorthodox manner almost certainly has to imply something weird or conspiratorial was afoot; the deep textual analysis has been particularly entertaining.
In any case, in casting the deciding vote and approving the opinion of the court’s liberal wing, Roberts held that the iconic core of “Obamacare” — the federal mandate decreeing that every American must either own health insurance or suffer a fine — was a lawful exercise of the federal government’s taxation powers. Under the Constitution’s so-called commerce clause, the U.S. Congress holds virtually unlimited powers to dream up new and exotic taxes, and, despite the White House’s instance to the contrary, that’s basically all the new “fine” on uninsured Americans was, in Roberts’ mind.
Congress holds no authority to simply demand people buy things and financially reprimand them if they disobey, wrote the Chief Justice; that would be “a new and potentially vast domain” of government authority over the lives of individuals. The feds do, however, have the authority to social engineer public spending habits indirectly through punitive taxes. Taxes on cigarettes are very high, the Chief Justice noted, simply because the government believes this added expense will make people less likely to buy them. A tax on uninsured Americans is basically the same principle, aside from the fact that you avoid this hit to your wallet by purchasing.
In this sense, I think Roberts made the right decision, and a very conservative decision at that.
These days we have an unfortunate tenancy to believe every law passed by the legislature exists on a rigid dichotomy of either being entirely good, or entirely unconstitutional, with the vast middle ground of “bad, but legal” being largely ignored. I do think Obamacare went about fixing America’s health care woes in all the wrong ways — like Canada, I think the United States would be best suited to embrace some manner of two-tier system, where public and privately-run health care providers and insurance companies can exist and compete in a shared marketplace — but I also don’t think the immediate cries that the legislation was unconstitutional were provoked by any legal principle higher than sour grapes from the losing side. While the Constitution may guarantee a right to protection from tyranny, there exists no inalienable right to protection from big-government busy-bodying. Simply describing the latter as the former does not make it legally so.
Most laws — and almost all fines and taxes — do restrict personal freedom in some way, but we also live in a system where the creation of taxes, fines, and laws are legitimate power of our democratically-constructed governments. Tea Party rhetoric aside, anyone who defines the concept of individual liberty so broadly as to be at odds with taxation or social policy itself is bound to be disappointed by the American Constitution, considering the clear prominence of phrases like “Congress shall have Power To lay and collect Taxes” and “general welfare of the United States” within it. The document may very well be a charter of freedom, but it is also a charter of government. Roberts’ ruling was a firm reminder that bad policy is very much an inevitable byproduct of constitutional government, not something it exists to protect us from.
The silver lining, of course, is that constitutional policy is not automatically permanent or inalterable policy — another lazy conclusion that has become far too mainstream. Though we all love to denounce the activist judiciary for “legislating from the bench” and so forth, overtly legislative, impenetrable Roe v. Wade-type rulings from the Supreme Court are actually quite rare; far more often the high court simply confirms the validity or invalidity of legislation on the broadest of grounds, leaving considerable room for revision around the edges. As a positive finding, the Obamacare ruling is the most generous version of this — no fundamental rights were found to be stake, so the act simply sits in the enormous pile of constitutionally allowable law that can be easily be revised or discarded according to political whim.
The ball is firmly in the politicians’ court, in other words, and the onus is now on the Republican Party and Mitt Romney to win a democratic mandate for the repeal of Obamacare — a gesture that would be every bit as fair and constitutional as its original passage.
In ruling the way he did, Roberts not only helped break down the myth (often spouted by yours truly) that the Supreme Court is this rigidly political institution of predetermined conclusions dictated by partisan interest, but also reminded that the Constitution is a complex document that demands an equally complex loyalty. In short, he demonstrated that being a good conservative — in the sense of defending the fundamental legitimacy of the legal process and the American system of constitutional government —is not always the same as being a good Republican, and that being a being a man of principle can sometimes be a radical stance in an increasingly unprincipled world.
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