Guest Post: Why John Roberts is a Genius

by Guest | 2:39 pm, June 28, 2012 | Comments Off

Guest post by Alexander Hornaday

First things, being already dangerously close to banishment to the Frummery as it is, let me affirm wholeheartedly that I abhor the Patient Protection and Affordable Care Act (hereinafter “Obamacare”).  I believe that it is bad policy that represents a galling intrusion on our liberties and will have calamitous effects on the cost and quality of health care in this country. I, like most PPC readers, had high hopes and too much confidence that the Supreme Court would strike it down.

Conservatives, however, do not be despondent, and most certainly don’t direct your ire at Chief Justice John Roberts.  He did his job, and in a funny way this will help our side despite the sting of today’s medicine.

First the obvious:  The Chief Justice has energized our base in a way that Mitt Romney never could.  Remember how last week all the talking heads were saying the Tea Party is over?  Today the Supreme Court just ordered us a new pot of Earl Grey and some fresh crumpets.  A movement that formed in large part out of opposition to Obamacare just learned that the only way to get rid of it is to elect Republicans, and not just Mitt Romney, but also in every Senate race possible.

In fact, Chief Justice Roberts TOLD US THAT IN THE OPINION. “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.” Nat’l Fed. of Indep. Business v. Sebelius¸ No. 11-393, slip op. at 6 (U.S. June 28, 2010) (emphasis added).

It is important, and indeed an exceptional relief that the court specifically rejected the Commerce Clause argument. This decision represents the vindication of conservative interpretation of the power to regulate interstate commerce, and Dave Kopel explains very ably why below.  I merely add that if ever the notorious and execrable Wickard v. Filburn case is overturned, today’s decision will likely be an important step on that path.

But of course that may seem like cold comfort now because Obamacare was upheld under the taxation power, relying on an argument the Administration never really liked making. Nevertheless, as Congress is not required to identify what power they are using, the question was not just whether Congress could impose a mandate with the Commerce Clause; it was whether Congress could do it all.  The answer is, yes, Congress has the authority to tax us for not purchasing something, but cannot compel us to enter a market just because Congress says so.

I had always found it peculiar that the administration so vehemently denied that the penalty was a tax, which would—as we learned today—pass constitutional muster, preferring instead the clumsy “we can do it because we can regulate everything” riposte to the accusations of constitutional overreach.  It basically abandoned its strongest argument for political reasons. “Of course we aren’t raising taxes on everyone in the country; that would be terrible! This is just a penalty for failing to comply with a mandate,” the Administration assured us.

Chief Justice Roberts said “On the contrary, this is a tax, you liar.”

The Supreme Court informed America that the Obama administration raised taxes on everyone, did it secretly, and lied about it.  In less than an hour we saw our side embrace this message.  However, this has a more subtle significance. From now on, because the Commerce Clause is closed to them, to do something similar Congress must now explicitly tell the people that they want to raise our taxes to give something to someone else.  Republicans will have no stomach for that, and although Democrats might try admitting they are raising taxes, but I wager without significant success.

So, to recapitulate, we have the Chief Justice of Supreme Court taking the heat while safely in his lif appointment for upholding a law that is very unpopular, energizing the base of the Republican Party that until now had been lukewarm on its presidential candidate, practically including a Republican GOTV exhortation in the opinion,  handing the Republican candidate a great talking point by revealing President Obama to be a lying tax-raiser, and achieving a long-standing goal of conservatives by limiting the scope of the Commerce Clause.  Here’s the masterstroke: Chief Justice Roberts did all that by siding with the liberals so no one can accuse him of partisanship. 

He’s basically a jurisprudential Batman.

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