John Roberts' decision on health care places the country at a constitutional crossroads. On the one hand, his majority opinion upholds the greatest expansion of the welfare state since the 1960s. On the other, it undermines the constitutional underpinnings of big government. This makes the current presidential election into a constitutional turning point -- the next judicial appointments will determine the path which the nation will follow for the next generation.
Roberts decided the case all by himself. The four liberals found him too conservative on one key issue; the four conservatives found him too liberal on the other. Though nobody agreed with him on both, he cast the decisive fifth vote on each. This is why the next Supreme Court appointments will tip the balance beyond the Chief Justice's control.
Begin with Roberts as a conservative. Since the New Deal, the Court has systematically upheld Congress' power to respond to economic problems that were too big for individual states to handle. For example, before Roosevelt came to power, a conservative Court had struck down Congress' nationwide ban on child labor. So far as the majority was concerned, Congress had abused its power because the children worked in local plants which didn't have a "direct" effect on interstate commerce.
But the New Deal Court repudiated this legalistic talk of "directness." They based Congressional power on the common-sense recognition that the old system encouraged a "race to the bottom" that pressured more and more states to allow the exploitation of children. This sufficed to justify the invocation of the interstate commerce clause.
Roberts' majority opinion, signed by the four conservatives, returns to the logic-chopping of an earlier era. Never mind that a single state which provides universal health care may lose business to other states that allow firms to cut costs by denying health insurance to workers. The Roberts Five doesn't find this a "direct" enough connection to enable the national government to create a level playing field on interstate competition. Similarly, millions of uninsured Americans regularly travel out-of-state and go to emergency rooms at taxpayer cost. But once again, this is not a "direct" enough connection for the five conservatives.
There is no need to scrutinize these, and similar, arguments in detail. The key point: Roberts' opinion will provide a springboard for an even more aggressive assault on national regulation if Mitt Romney is our next president, and appoints conservatives to fill the places of aging liberals like Ruth Ginsburg or Stephen Breyer. At that point, Roberts' savvy caution will no longer deter the Court from a much broader attack on big government.
But Roberts did save the Court this time around. Having blown apart the New Deal underpinnings of modern government, he then saved the Affordable Care Act by upholding the mandate under the federal government's taxing power. Siding with the four liberals this time, he correctly held that Congress' power over taxation is even broader than its power over interstate commerce, and amply supported an annual payment from Americans who wished to remain uninsured.
This means that if Obama wins, his new liberal Court appointments won't find themselves in the embarrassing position of condemning their immediate predecessors. Since Roberts upheld healthcare as a tax, they can simply say that all his legalistic talk about narrowing the commerce clause was unnecessary for decision; and that the new liberal majority will refuse to support any further attempt to lead the country back into the early twentieth century.
Unlike most presidential elections, there are big constitutional stakes riding on this one. There is only one clear winner -- and that is John Roberts himself. If Obama gains a second term, Roberts will retain credibility as a nonpartisan leader. After all, he didn't kill Obamacare when he could have done so easily. If Romney takes the White House, Roberts' opinion on the commerce clause will define the parameters of constitutional development for a long time to come.
Not a bad day's work for a Chief Justice looking to a second decade of leadership on a changing Court. Beyond his remarkable personal victory, Roberts' balancing act has also served the nation. It has preserved the Court's legitimacy as America confronts the crises that are sure to arise in the coming decades.
Bruce Ackerman is professor of law and political science at Yale and the author of We the People.
 |
 |
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| Obama | Romney | |
|---|---|---|
| Electoral Votes (270 to win) |
332 | 206 |
| Obama | Romney | |
|---|---|---|
| Total | 65,899,660 | 60,932,152 |
| Percent | 51.1% | 47.2% |
| Democrats* | Republicans | |
|---|---|---|
| Current Senate | 53 | 47 |
| Seats gained or lost | +2 | -2 |
| New Total | 55 | 45 |
| Democrats | Republicans | |
|---|---|---|
| Seats won | 201 | 234 |
Important.
Hotly divided.
"brilliant' compromise by declaring that blacks were not non-human, but weren't fully human either.
A 'brilliant' compromise that infuriated both sides and only makes sense to air-heads.
Roberts came up with the 'brilliant' compromise that the other four plus four ALL don't understand.
We now have a tax that is not a tax.
Let's call it the 'Great Scott!' decision.
The details of the decision are always up for debate by Monday morning quarterbacks/Chief Supreme Court Justices.
But from a PR standpoint Justice Roberts scored BIG TIME!
Independents have no choice but to refrain from the argument that SCOTUS is partisan.
As an independent, I never bought the idea that SCOTUS determined the Gore/Bush election.
Technically the stopped the recount and that is all.
If the Nader liberals voted for Gore, SCOTUS wouldn't have ever been a part of the equation.
And no independent body has ever produced any significant evidence that Gore recieved more votes that Bush.
ObamaCare IS constitutional and it is a valid argument that the vehement opposition is at best partisan bias.
Newt and The Heritage Foundation were both strong advocates for Healthcare Reform in the 90's.
And Mitt invented HRC in MASS.
Justice Roberts gave himself GREAT CREDIBILITY and autonomy from all sides (left, right and the swinging middle).
Be careful what you wish for.
The House, (where taxing measures are supposed to originate in the first place, specifically the Ways and Means committee), sends bill over to the Senate and they accept it as is.
How sweet would that be, since reconciliation is generally used only for that exact purpose anyway and NOT for general policy statutes, like Health Care Reform.
These knuckleheads in Washington have such short memories.
So what is this "buy health care tax"--direct[must be apportioned] or indirect[not apportioned]?
Does Roberts know the U.S. Constitution?
Then read up on the complexity of the legal issues and precedents (or lack thereof) before spouting ideology.
So if that appeals to you, and you are so altruistic so as to give up the health care you are paying for, to others who are less fortunate, good luck. You let your children go without care, so that some other children can have good care. Very commendable.
The real winners are the millions of people who are getting preventative health care with no co-pays.
The real winners are seniors who are getting discounts on their meds.
The real winners are expectant mother and their new born infants who will receive life-saving pre and post natal care.
The real winners are children with asthma who can now get inhalers. (I should know. I spent a life-time teaching in a public inner city high school where asthma was endemic.)
Why can't Ackerman get beyond the Beltway scoreboard and see the lives of real human beings who are affected by the Supreme Court decision?
Look at any international comparison of relative health care insurance costs, and you will see that universal health care insurance costs could be well below that of the 'Romneycare' renamed 'Obamacare' throughout the U.S.
Make Big Pharma pay its own way and remove the insurance middleman and perhaps costs could be controlled as well. But Republicans won't allow it and Dems won't fight for it.
I think that's too grand a conclusion.
The Supreme Court has got to be the protector of the Bill of Rights. This document was intended to guarantee to the people the precepts in the Preamble of the Constitution, the most important clause of which is "to promote the general welfare."
There is nothing in the Preamble or the Bill of Rights that can remotely be said to favor the narrow interests of big business over those of the people as a whole. Every SCOTUS decision that does so contravenes the intent of those documents.
I don't want an impartial Supreme Court. I want a Court that favors the welfare of the people above all other considerations. That's what this country is for.
NB. Presidents don't "appoint" Supreme Court Justices, despite the common usage of that word. They only nominate. The Senate has the power to refuse to confirm those appointments, and has done so twelve times. Were Romney to be elected, a Democratic Senate would have the power to reject any enemy of civil liberties he might propose.