The verdict on the court

My husband and I have been going back and forth over whether Justice Roberts's decision can be defended.  I was inclined to stick up for him at first, but I'm coming around to the opinion that he fell into the trap of issuing an opinion tainted by politics.  That they weren't the politics his enemies predicted he would fall prey to doesn't change this conclusion.  The editorial board of the Wall Street Journal did the best job I've seen so far explaining where he went wrong:
America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes.  These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states.  For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves. 
That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power.  The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises. . . . [T]he punishments in the [current] tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows.  Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.  Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. 
His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.  If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked.  The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.


Anonymous said...

This is not the first, and it certainly will not be the last, time the US Supreme Court has punted on a highly political issue. I'd say he's gambled on the American people, by refusing to protect them from their own bad judgment in choosing politicians.

The actions of the Democratic Party at the national level have followed experiments in at least the Maryland and California state legislatures, where long-standing Democratic party dominance in a state has led to the passage of laws without consulting either the constitution or the minority party. They tried it, and found out that it would work, provided they selected a political target that was small enough.

It's a very old story: "First they came for the Jews...."

For me, the only question is "what doe we do next?" and the answer is "throw the bums out."


Cass said...

I'd say he's gambled on the American people, by refusing to protect them from their own bad judgment in choosing politicians.

Excellent framing, Valerie. I live in Maryland and we're about to experience a big tax hike that is *retroactive* to January.

I have a feeling when the reality of that hits, a lot of voters are going to be asking how much of their paycheck they really want to devote to social justice as envisioned by our legislative overlords?

There's a great quote by Scalia that talks about the wisdom on not trying to enshrine our current policy preferences in the Constitution. He says that the Founders made mistakes, but one thing is that they left us free to change our minds....which includes the freedom to make mistakes, even really big mistakes.

The older I get, the more inclined I am to think that's how most of us learn.

Miss Ladybug said...
This comment has been removed by the author.
Miss Ladybug said...

It scares me that we will never be able to undo what this one man has done to this country with his decision on this case...

Grim said...

Well, really we can. The question is whether the political class will let us.

My fear isn't the SCOTUS. It's that the next President and Congress -- whichever party we elect -- will simply refuse to act on that option. The Democratic part of the political class is devoted to this plan; and the Republican leadership seems already to be trying to hedge off of opposing it.

Here in Georgia, a Democratic governor named Roy Barnes forced the legislature to change the old Georgia State Flag. It was a wildly unpopular thing, but he was a part of that class that thought it knew better than the people of the state. His Republican opponent beat him in the next election by promising to put the flag issue up to a popular vote.

When he got in office, he did hold a vote -- but not between restoring the old flag or keeping Barnes' new flag. He held a vote between Barnes' flag and some new third design.

He didn't last long either, but we never did get to vote on the flag. I'm betting that even if you give the Republicans both houses of Congress and the White House, they won't really do what you're electing them to do -- no more than Sonny Perdue did when he was governor here.

Cass said...

What has been done to the country by this one decision?

This is a serious question. I would like to see it articulated.

Miss Ladybug said...

This one decision has changed the legal interpretation of the Constitution as to what kinds of taxes the federal government can impose. I may not be some Constitutional expert, but I still believe the precedent this ruling sets allows the federal government to coerce We, The People into doing their bidding or else face punitive taxes. There is no way to escape the tax except by doing as the government tells you to. As the linked article from the WSJ noted, this is different than how the government has treated taxes to gain a desired result: before, you got a tax break for engaging in behavior the government desired (e.g. - the mortgage interest deduction). If you did not take the desired action (buying a house), you were not penalized; you are only rewarded if you take the desired action.

This time it is health insurance. What will it be next time? Buy an electric car or pay an onerous tax? Only buy government-approved food stuffs or pay an onerous tax?

In my opinion, this one decision by this one man has given the federal government an unlimited power to tax The People. As Grim noted, precedent can be overturned. However, it is not easy to do so. How long will it take to correct this horrendous error in Roberts' judgment?

bthun said...

As long as it takes for the electorate to wake up, pay attention to the rascals who whittle away at the Constitution and vote them out. Early and often.

What has been done can be undone.

BTW, howdy and a Happy 4th wish to ya Miss LB.

Elise said...

I have to admit that I didn’t follow much of the WSJ piece on taxes but it looks to me like Althouse has pushed back on that argument.

More generally, Puter over at The Gormogons has up a post that argues (as I understand it) that Roberts’ decision was a conservative one because (again as I understand it), the question Roberts asked was, “Is there any possible basis on which a law passed by the elected branches of government can be interpreted as being Constitutional?” I think that’s what we want the Supreme Court to do: try not to overturn laws passed by legislatures and signed off on by executives. Would that they had taken that tack with decisions like Roe v Wade.

There is an election coming up and if the majority of people in this country really want ObamaCare overturned, we have the chance to elect people who will overturn it. If we don’t elect people who will do that then we have, in essence, once again voted for ObamaCare. And if Grim’s scenario comes to pass and we elect people who say they will repeal ObamaCare and then don’t, we have a much, much bigger problem than just ObamaCare.

This is - or should be - our fight. As another Gormogons post puts it:

We as citizens cannot bet the Republic on the decisions of 5 unelected Members of the Supreme Court. We citizens should take responsibility for safeguarding our Constitution and our political institutions by our decisions at the ballot box.

E Hines said...

What has been done to the country by this one decision?
This is a serious question. I would like to see it articulated.

The virtually entire lack of limits on the Commerce Clause since the intimidated Court's Jones & McLaughlin and the Roosevelt-packed Court's Wickard has been left unchallenged--even by the so-called conservative, judicially restrained, wing.

The majority opinion has blown the doors off the Federal government's ability to tax and to use taxes to "influence" all behavior--including inactivity.

...the question Roberts asked was, "Is there any possible basis on which a law passed by the elected branches of government can be interpreted as being Constitutional?"

Yes, that was the question he asked. And he twisted himself into a pretzel to answer it; thoroughly abusing the doctrine--which actually asks whether it's "fairly possibly" to uphold an Act--thereby demonstrating its uselessness.

Eric Hines