Stepping Back from the Ledge: On the Obamacare Opinion

Let me preface this by saying that I am no legal scholar, merely a long-time hobbyist and sometimes court-watcher. That said, I wanted to share some unorthodox thoughts on today’s PPACA decision and the man who authored it. I’ve deliberately avoided reading much in the way of commentary on today’s opinion from either side, choosing instead to read the opinion itself and formulate my own thoughts on it. And here they are, for any who care to read them. Take them for what they’re worth . . . which is roughly equivalent to the amount you paid to read them here.

Right now, there can be little doubt that Chief Justice John Roberts is the most reviled man on the right. Personally, I have been impressed with Roberts since I first heard of him when he was tapped by George W. Bush for the D.C. Circuit. While each of the nine people on the Supreme Court bench have at various times given me cause to respect their intellects, in my opinion Roberts outshines nearly all of them, with the possible exception of Clarence Thomas.

This opinion has given me no reason to change that impression.

This opinion was a defeat for the forces of limited government. There can be no doubt about that. However, let us not forget that the likes of Thomas Jefferson and Patrick Henry felt the same about the ratification of the Constitution itself. I am no fan of big government, and from a policy perspective I wish this had gone the other way. I greeted the news that the mandate was upheld with the same shock, dismay and uneasiness as many of you reading this. Like most, I did not see this coming. My personal suspicion was that the court would strike the mandate by 5-4, and uphold the rest of the law by a comparably thin margin. I was wrong.

But as I read through the key pages of the opinion, I can find very little fault with its reasoning, and frankly, it seems like there is much to like, from the perspective of someone who craves more mechanisms to limit federal intrusions into our lives.

Let’s dispense with the obvious first. The opinion reveals the President, the Democratic leadership in Congress, and their various enablers as the liars they are. They told us time and time again, “This is not a tax.” Had they claimed then that it was what it now unambiguously is, this bill would never have passed. Then, when the time came to defend it in court, they claimed (among others) the right to levy the mandate as a tax. They are liars and ought to be tossed out on their collective ears in November. If anything, this decision makes that easier because it is now crystal clear that the only thing standing between us and the implementation of this trainwreck is a Romney Presidency, backed by a Republican House and Senate.

But there it is. The mandate is a tax. Roberts is quite convincing on that point. He writes, “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.” And that’s exactly what the individual mandate does. Roberts notes that Congress has not always called something “a tax” when applying its taxation power. He notes that Congress imposes no other penalty on those who choose not to buy insurance other than to require an elevated payment to the IRS (sounds kind of like a tax, doesn’t it?). In other words, he notes that this walks like a tax, talks like a tax, and even though it’s called a “penalty” in the plain text of the law, it pretty much operates as a tax. Therefore, he says, it’s a tax.

I may not like the outcome, but it’s pretty hard to fault the logic behind it.

And therein lies the issue for conservatives. We like to talk about how the left is results-oriented while the right is process-oriented . . . i.e., that we are a nation of laws and not of men. We like to talk about courts that adhere to the original intent of the Constitution and the Congress when it authors new laws . . . and who eschew the temptation to craft the law in accordance with their own policy preferences.

And Roberts gave us exactly what we’re always claiming we want. He applied the taxation power as written in Article 1, Section 8, to the law in exactly the way the bill’s authors (Pelosi and her cronies) intended.

Again, I don’t like the outcome. But as conservatives, we don’t want the court to be outcome-driven, do we?? Don’t we want it to apply the constitution to the laws, as written and intended by their respective authors?

Roberts, it seems, was playing exactly the role he said he planned to play at his confirmation hearings . . . the role of the impartial umpire who puts his policy preferences aside in favor of broader legal principles. Didn’t we all cheer when he said that? His opinion specifically declined to take an opinion on the merits of the PPACA itself as policy, and didn’t need to do so as law . . . the court never reached the question of the broader law’s constitutionality once the mandate was ruled constitutional.

That leads us to the things about this decision that conservatives can like – and there are a surprisingly large number of them.

1) As I noted above, this decision makes it much easier to pull the lever for Mitt Romney. In pointing this out, I’ve already been accused by liberals of asserting that “Roberts voted for Obamacare to swing the election to Romney.” No, not at all. Roberts is neither that shallow nor that shortsighted. The increased likelihood of a Romney victory in November is merely a side benefit . . . though it will likely be the first one actually realized, chronologically speaking.

2) As I also noted above, this decision does NOT rule on the merits of the law itself. That means unless it is repealed, the law will be back in front of the court at least once (the HHS Birth Control Mandate) and perhaps more (e.g., the IPAB). This is hardly our only bite at the apple. Roberts made sure of that.

3) The notion that the government could compel transactions between private entities was an odious one, but that notion is specifically dispensed with in this opinion. The government may tax a person for making a particular choice, but it may NOT compel them to engage in commerce. In this particular instance that is a distinction without a difference, but it will not always be thus, and that avenue for coercion is now closed to Congress. The government could not (or would not) articulate the limits of its own commerce clause power in briefs or oral arguments . . . so Roberts did it for them.

4) In dispensing with the commerce clause justification for Obamacare, Roberts undermined a whole host of other liberal shibboleths. Here is one phrase from his opinion that I suspect we’ll see again, “Our precedents recognize Congress’s power to regulate ‘classes of activities,’ . . . not classes of individuals, apart from any activity in which they are engaged” (emphasis in original). This phrase could have ramifications for future cases regarding the constitutionality of affirmative action, new social programs, and perhaps the big Voting Rights Act case coming out of Alabama next term. Congress certainly does its best to “regulate classes of individuals” on a regular basis. Roberts just handed the court an easy way to tell them “no.”

5) In dispensing with the necessary and proper clause justification for Obamacare, Roberts further undermines the “unlimited federal power” worldview held by many liberals, when he says, “Each of our prior cases upholding laws under that clause involved exercises of authority derivative of, and in service to, a granted power. . . . The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.” As I said, I’m no legal scholar, but to my inexpert eye, this reads to me as though he’s saying simply that Congress cannot create a problem in order to justify a solution . . . something Congress is inordinately fond of doing (creating the financial crisis by encouraging overly-generous lending habits, in order to “solve” it with the stimulus, for example . . . or creating artificial scarcity of energy resources in order to “solve” it by pouring billions into unworkable green energy “solutions”). Again, this opinion makes these more difficult to justify in the future if they end up before the high court.

6) On the Medicaid Expansion, Roberts did his best to undermine the PPACA itself . . . the state-by-state implementation is dependent on state exchanges, and Roberts made sure the states have as little incentive as possible to actually set up those exchanges by taking away the administration’s ability to punish them if they refuse.

In short, it sounds like what Roberts has done is make sure that when Congress wants to have a real “slam dunk” with regard to the constitutionality of certain types of new regulations, they’re going to have to frame those regulations as new tax hikes. Given how popular taxes aren’t, that’ll make these new regulations much less palatable with the voting public, and will likely lead to fewer of them in the future (how many fewer, only time will tell).

The way I read this decision, it comes across as a textbook example of putting legal principles ahead of policy preferences – which is exactly what we want in our Supreme Court justices. It sounds like John Roberts turned out to be exactly the Chief we on the right said we wanted when President Bush appointed him.

So we lost this policy battle, but in the long run, I think this decision, as written by the Chief Justice, makes it easier to win the war. Roberts even lays out the next steps for us when he writes, “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.  It is not our job to protect the people from the consequences of their political choices.”

So let’s get out there and protect ourselves in November. There are a lot of independent and/or low-information voters out there who will read this opinion and hear one word, “TAX.” Let’s enlist them to protect themselves from the consequences of past political choices as well.

Protecting ourselves by making wiser choices, rather than relying on a handful of unelected government officials to protect us from a history of bad ones – sounds pretty conservative to me!

 

UPDATE: Now that I’m reading commentary from others, I’m finding lots of other folks on the right who are coming to similar conclusions. One of them even pointed out that, since Roberts has declared the PPACA a “tax,” it can now be pushed through the Senate using the same reconciliation process by which it was passed in the first place . . . you know . . .  the one that can’t be filibustered?

 

UPDATE II: Based on the commentary I’ve been reading, and the comments I’ve received so far, I see that the piece I failed to address the first time around (which, incidentally, Roberts failed to address thoroughly in his opinion as well) is the question of whether, if the mandate is a “tax,” it is a constitutional one. The dissent took Roberts to task for this oversight, and I should have addressed it in my initial thoughts. I will do so now.

I think the question is a debatable one. I do not agree with Kennedy, Scalia, Thomas and Alito, that Roberts has engaged in wholesale “Judicial tax-writing.” The interpretation that this was a tax was in the legislation from the beginning. That’s precisely why the President and his surrogates had to so vociferously defend themselves against the (perfectly accurate) accusation that this was a tax. To say that Justice Roberts came up with that interpretation on his own is to ignore a significant chunk of the public policy debate around the law over the past several years.

But if it’s a tax, is it constitutional? Just as I am no legal scholar, I am also no tax lawyer, so again my opinion is hardly definitive, but for what it’s worth, given the text of the Constitution and Supreme Court precedent on this question, I’d say, “Yes.”

I hate that fact. I don’t like taxes any more than any other tea-party-sympathizing, Republican-voting conservative out there. But there it is. This seems to me to be an example of an excise tax on the economic activity of self-insuring for health care, which would make it perfectly constitutional. It also makes it a very bad idea from a policy standpoint, but that’s not Roberts’ job to decide, and it irks me that the usually cautious conservative wing of the court delves deeply into the policy implications of the law in its dissent. That is not the court’s job!

But back to the excise tax. An excise tax is “a tax that is measured by the amount of business done (not on property or income from real estate).” Excise taxes were a favored method of taxation by the founding fathers themselves – especially the first Treasury Secretary, Alexander Hamilton.

So from a legal construct, then, the “individual mandate” is an excise tax on the economic decision individuals make to self-insure.

If this sounds suspiciously like the arguments in favor of the mandate from a commerce clause perspective . . . the argument that everybody will at some point get sick, so Congress is perfectly free to regulate them, here’s the difference:

Choice.

Roberts wrote,

“Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punishindividuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”

As a “mandate,” the law criminalizes the act of self-insuring . . . that is, the act of not acting to purchase health insurance. There is no choice involved: A private individual purchases a product from a private seller, or else is defined as a criminal under federal law, and as Roberts noted, criminal penalties can come in far more stringent forms than exacting a payment. That, said five of the nine justices, is beyond Congress’ ability to do.

As a tax, though, the law gives the individual a choice: purchase insurance, or self-insure and pay the tax. You pick. End of story.

I’m going to use a much-rehashed, imperfect analogy to explain what I mean: Think of it like car insurance. I grew up in California, where the law says “You must be insured in order to drive.” When stopped by a police officer, they ask you to show them your license, registration and proof of insurance. There is no choice. You are insured, or you cannot (legally) drive.

I now reside in Virginia. The law here is different. You have a choice to either purchase auto insurance or pay the government a $500 annual fee and self-insure. If you self-insure and get in an accident, you’re on your own hook to pay for it . . . but the government still has your $500.

What Roberts did was declare that the California model is unconstitutional (for health insurance, at the federal level), but the Virginia model is not.

As I said, it’s an imperfect analogy – because each of us has a choice whether to drive or not in the first place, where nobody has a choice whether or not to get sick. However, I think it fits well enough to justify Roberts’ logic in the court’s opinion.

Let me say again: As a matter of policy, I think this whole bill is a terrible idea that will drive up costs, reduce the quality of service, drive many doctors out of business, and generally make the state of health care in the U.S. much, much worse. I think it needs to be repealed as quickly and thoroughly as possible. I also think there are plenty of other viable constitutional challenges to this law – first and foremost the HHS birth control mandate and the IPAB – but I no longer believe the “mandate” to be among them.