It can be dangerous business trying to read the tea leaves and guess a Supreme Court vote based upon questioning during oral argument.
In March many experts believed, based upon the questions asked by the justices, that the so-called “individual mandate” provision of Obamacare, which required Americans to buy insurance or pay a fine, would not be upheld. I have to admit, I myself thought this provision was in trouble.
But in a 5-4 split decision that sent shock waves through Washington, D.C., and around the country, the United States Supreme Court largely upheld Obamacare on Thursday, including the individual mandate. (You can read the opinions for yourself here.)
Of course, many people had their eyes on perennial swing voter Justice Anthony Kennedy, widely seen as the key to whether the law would survive. However, in a stunning development, it was Chief Justice Roberts, appointed by President George W. Bush, who joined the liberal wing of the High Court to secure the victory for President Obama. I am as upset as you likely are about this.
(In a less surprising move, Justice Kagan also voted in favor of the law. As you know, JW uncovered documents suggesting then-Solicitor General Elena Kagan’s office helped craft the legal defense for Obamacare when she served as President Obama’s Solicitor General.)
Essentially, the majority of justices did some legal and constitutional legerdemain to change the individual mandate penalty into a tax in order to uphold the law’s constitutionality under Congress’ alleged taxing power, rather than the Commerce Clause.
(Not even President Obama himself agrees with this line of reasoning. Obama said publicly that the law’s individual mandate was not a tax. Read this interview with ABC’s George Stephanopoulos.)
Here’s the statement I offered to the press responding to the High Court’s decision:
This Supreme Court majority rewrote Obamacare and then upheld its constitutionality. This decision is monstrous and upends the constitutional limits on federal power. That the Chief Justice would join the Court’s liberal block to legislate from the bench is shocking. Instead of calling the law Obamacare, we can fairly call it ‘Robertscare.’
Justice Kagan’s controversial decision to participate in this case despite unanswered questions about her role in defending Obamacare while working in the Obama administration also taints the High Court’s decision.
The Court’s decision will contribute to the public’s concern that our government is out of control and acting without constitutional authority. The rule of law suffered a stinging blow today.
On February 13, 2012, Judicial Watch filed an amicus curiae brief with the High Court arguing that the “individual mandate” provision of Obamacare is unconstitutional – whether considered under Congress’ commerce power or taxing power:
Petitioners are trying to defend a provision in an act passed by Congress that exceeds its enumerated powers. Though Congress enacted this provision under the Commerce Clause, Congress’ power under the clause is not broad enough to compel Americans to engage in commerce by purchasing a particular product. Though Petitioners try to rescue the provision by arguing that it is valid under Congress’ taxing power even if it is invalid under Congress’ commerce power, a provision of an act that is not a tax may not be construed as a tax merely to save it from being declared unconstitutional.
Judicial Watch further argued that, if the Supreme Court affirmed the constitutionality of the individual mandate, “it must be willing to hold that Congress’ powers under the Commerce clause are plenary and unlimited, for there remains no principled way to limit Congress’ power if it is stretched as far as Petitioners (the Obama administration) ask.”
(“Florida Federal District Judge Roger Vinson perhaps put it more colorfully when he struck down the law in its entirety last year. If the government can force American taxpayers to buy health insurance, it can also force them to decide “whether and when (or not) to buy a house, a car, a television, a dinner or even a morning cup of coffee.”)
A majority of the Court agreed with this analysis, but that isn’t what won the day; it was the fantastical tax argument concocted by the Chief Justice that saved Obamacare.
And, for now, it’s the law of the land.
Those seeking a silver lining in the seeming rejection of the notion that forcing you to buy something is within the commerce powers of Congress may also be disappointed. Roberts’ commerce ruling was not joined by his conservative colleagues, so, however laudatory, it may not be binding precedent and may not have force of law – despite the seeming support of five Justices.
Even if the commerce section of the ruling was binding, Robert’s tax analysis would give Congress arguably even more power to force Americans to buy and do things in a way that is antithetical to limited, constitutional government. At one point, Roberts suggests that it is obvious that Congress can tax you for not owning energy efficient windows? Really? If you know of any similar “tax,” let me know. And it certainly presents no real restriction to the federal government’s power to force you to do what it may want you to do.
If you think I’m overstating the remarkable confusion and danger of this decision, let me quote from the four dissenters:
We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty….Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
The majority’s attack on self-government endorses a bait-and-switch scheme that closes the loop on the constitutional corruptions of Obamacare – from Congress, to the Executive, to the Judiciary. As if to confirm the out-of-control crassness of the whole racket, President Obama celebrated his “victory” with a vulgar tweet referencing the “f” word.
But while this is certainly is a disappointment to those of us who objected to the monstrous threat to individual liberty that is Obamacare, the battle is not over.
For now, there is a lot of champagne popping going on over at the White House and perhaps a few toasts for the Obama administration’s unlikely hero, Chief Justice John Roberts. They call Obamacare a “great achievement.” I call it an unconstitutional disaster.