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Published: July 6, 2012

A Constitutional wreck

Roberts turns penalty into tax

The following article by Hadley Arkes, professor of jurisprudence at Amherst College, appeared on July 3 on The Catholic Thing blog site.

There had been warnings: At private gatherings, friends had seen certain conservative members of the Supreme Court looking rather downcast and discouraged. Some of us drew the dark inference that these were signs of what was to come with the decision of the Supreme Court on Obamacare (NFIB v. Sebelius). We clung to hope, but we braced ourselves.

Well, as it turned out, we read the body language the right way. The jolt might have been lessened by forewarning, but it was a shock nevertheless as we discovered that the result was produced by John Roberts swinging over to join the four liberal judges.

And yet the result had not been regarded earlier as implausible. Two months ago, I was at dinner, at Harvard, with two renowned friends, one a professor of law, the other a federal judge, and none of us could be certain as to where Justice Scalia would come down in this case.
It seemed entirely possible that Scalia could say, “Look, the lines of jurisprudence here on the Commerce Clause have been in place for seventy-five years. If you want to be rid of Obamacare, you’ll have to defeat it politically. We’ve argued that the judges should stand back. Don’t ask us now to do your political work for you.”

The astonishment came from the fact that it was John Roberts who now delivered a message of this kind, while Scalia was firmly on the other side.

The price for the Chief Justice joining the liberal side was that he could set down an opinion even clearer than the opinion offered by Justices Scalia, Kennedy, Thomas, and Alito in dissent: that the Commerce Clause could not be used to compel people to engage in the very commerce that brought forth the powers of the government to regulate it. The government could not issue a mandate to compel people to purchase medical insurance.

Some commentators have found a redeeming part of the judgment in this part of the opinion. But here, I’m afraid, some of our friends have been telling themselves fairy tales. For what Roberts set forth in the first thirty pages, he made into a virtual nullity in the remainder of his opinion, the part that provided the ground of his judgment.

The Administration had insisted that the Patient Protection and Affordable Care Act (aka Obamacare) did not raise taxes. But Roberts held that the penalties contained in the Act, the penalties for failing to buy insurance, did indeed form a tax, not a penalty.

The magical effect of a “tax” in this case was that it allowed the federal government to soar beyond all of those niggling limitations thought to be found in a government of limited powers. After all, the taxing power had been used for such things as encouraging people to buy homes. (Though people were not taxed for failing to buy a home.)

As Roberts pointed out, it was not strictly necessary to use the taxing power only for revenue: Congress had levied taxes in the past to discourage the import of slaves, but also products from abroad competing with products made in America.

The Administration admitted that the penalty for not buying medical insurance was indeed a penalty, not a tax. But the Chief Justice saw his task as moving beyond the titles that the president and the Congress were willing to give to their handiwork. The question of whether an Act of Congress is constitutional should not depend, he said, on whether “Congress used the wrong labels.”

But it was more than a matter of labels. John Roberts was appealing to a maxim not contained in the Constitution: that unelected judges should make an effort to find a constitutional ground for legislation before they fly to striking down a law made by legislators elected by the people.

That maxim, however, had to flow from a deeper principle about rightful government depending on “the consent of the governed.” In that case, it made the most notable difference that Obamacare managed to secure its passage – and the “consent of the governed” – only when it was “justified” to the public as something other than a tax.

If the Court had respected the discipline that comes with government by consent, it would have sent the measure back and essentially invited the president and Congress to come before the Court again with a bill that had been explicitly offered in Congress as a massive program in taxes – and on that basis secured its passage.

But the odd result is that John Roberts, with his own inventiveness, produced a decision that the Obama Administration has now repudiated. Obama and his aides have emphatically denied that the law brought a raise in taxes. The Administration has refused to respect the very terms on which John Roberts managed to sustain its defining “achievement.”

If there is any redeeming part to this wreckage it is that the decision induced a clarity of mind among the pro-lifers. If the Court had swept away Obamacare in a stroke, Catholics and Evangelicals might have been lulled into the assumption that the Court had solved overnight the problem of those mandates on contraception and abortifacients.

No. That threat to religious freedom will be averted only by voting out this Administration and repudiating its works. The question is back in the political arena where it belonged in the first place.

To read original blog posting, Click here.

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