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The Supreme Court Does Obamacare: A Constitutional Wreck Print E-mail
By Hadley Arkes   
Tuesday, 03 July 2012

There had been warnings: At private gatherings, friends had seen certain conservative members of the Supreme Court looking rather downcast and discouraged. Some of us drew the dark inference that these were signs of what was to come with the decision of the Supreme Court on Obamacare (NFIB v. Sebelius). We clung to hope, but we braced ourselves.   

Well, as it turned out, we read the body language the right way. The jolt might have been lessened by forewarning, but it was a shock nevertheless as we discovered that the result was produced by John Roberts swinging over to join the four liberal judges.

And yet the result had not been regarded earlier as implausible. Two months ago, I was at dinner, at Harvard, with two renowned friends, one a professor of law, the other a federal judge, and none of us could be certain as to where Justice Scalia would come down in this case.

It seemed entirely possible that Scalia could say, “Look, the lines of jurisprudence here on the Commerce Clause have been in place for seventy-five years. If you want to be rid of Obamacare, you’ll have to defeat it politically. We’ve argued that the judges should stand back. Don’t ask us now to do your political work for you.”  

The astonishment came from the fact that it was John Roberts who now delivered a message of this kind, while Scalia was firmly on the other side.

The price for the Chief Justice joining the liberal side was that he could set down an opinion even clearer than the opinion offered by Justices Scalia, Kennedy, Thomas, and Alito in dissent: that the Commerce Clause could not be used to compel people to engage in the very commerce that brought forth the powers of the government to regulate it. The government could not issue a mandate to compel people to purchase medical insurance.

Some commentators have found a redeeming part of the judgment in this part of the opinion. But here, I’m afraid, some of our friends have been telling themselves fairy tales. For what Roberts set forth in the first thirty pages, he made into a virtual nullity in the remainder of his opinion, the part that provided the ground of his judgment.

The Administration had insisted that the Patient Protection and Affordable Care Act (aka Obamacare) did not raise taxes. But Roberts held that the penalties contained in the Act, the penalties for failing to buy insurance, did indeed form a tax, not a penalty.


High five?

The magical effect of a “tax” in this case was that it allowed the federal government to soar beyond all of those niggling limitations thought to be found in a government of limited powers. After all, the taxing power had been used for such things as encouraging people to buy homes. (Though people were not taxed for failing to buy a home.)  

As Roberts pointed out, it was not strictly necessary to use the taxing power only for revenue: Congress had levied taxes in the past to discourage the import of slaves, but also products from abroad competing with products made in America.

The Administration admitted that the penalty for not buying medical insurance was indeed a penalty, not a tax. But the Chief Justice saw his task as moving beyond the titles that the president and the Congress were willing to give to their handiwork. The question of whether an Act of Congress is constitutional should not depend, he said, on whether “Congress used the wrong labels.”

But it was more than a matter of labels. John Roberts was appealing to a maxim not contained in the Constitution: that unelected judges should make an effort to find a constitutional ground for legislation before they fly to striking down a law made by legislators elected by the people.  

That maxim, however, had to flow from a deeper principle about rightful government depending on “the consent of the governed.” In that case, it made the most notable difference that Obamacare managed to secure its passage – and the “consent of the governed” – only when it was “justified” to the public as something other than a tax.

If the Court had respected the discipline that comes with government by consent, it would have sent the measure back and essentially invited the president and Congress to come before the Court again with a bill that had been explicitly offered in Congress as a massive program in taxes – and on that basis secured its passage.

But the odd result is that John Roberts, with his own inventiveness, produced a decision that the Obama Administration has now repudiated. Obama and his aides have emphatically denied that the law brought a raise in taxes. The Administration has refused to respect the very terms on which John Roberts managed to sustain its defining “achievement.”

If there is any redeeming part to this wreckage it is that the decision induced a clarity of mind among the pro-lifers. If the Court had swept away Obamacare in a stroke, Catholics and Evangelicals might have been lulled into the assumption that the Court had solved overnight the problem of those mandates on contraception and abortifacients.

No. That threat to religious freedom will be averted only by voting out this Administration and repudiating its works. The question is back in the political arena where it belonged in the first place.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
 
 
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Comments (16)Add Comment
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written by jsmitty, July 02, 2012
It sounded like what happened was that the four conservatives wanted to throw out the whole law, which was further than Roberts was willing to go, since that really would have constituted judicial activism. Roberts might have been willing to set aside the mandate. Basically I think Roberts does not want the court to become perceived as a right wing version of the Warren and Berger courts of old--where conservatives look to as the last resort for political results that they cannot achieve democratically. Can we blame him?

Mark my words if the court hears a case that significantly chips away at or overturns Roe, you'll be happy because this decision will make it harder to label the decision as pure politics.
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written by Louise, July 03, 2012
But the Administration argued in Court that it was a tax so couldn't the Court see that as a clarification of the President's intent regarding his willingness to sign it into law? Or do they have to just stick with what was said before the oral arguments? I'm not an attorney so don't totally understand what restrictions the Court has to operate under.
I've complained for years about the Court's activism so I'm trying to be consistent but also don't want to err the other way either, i.e. not recognize when the Courts should strike down a law.
Seems like they have to decide when he was telling the truth, before or after he signed it into law.
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written by Howard, July 03, 2012
You say, "John Roberts was appealing to a maxim not contained in the Constitution: that unelected judges should make an effort to find a constitutional ground for legislation before they fly to striking down a law made by legislators elected by the people."

In fact, the maxim that unelected judges may strike down a law made by legislators elected by the people is not found in the Constitution, it is found in the opinion of John Marshall.
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written by Paul Fahey, July 03, 2012
"That threat to religious freedom will be averted only by voting out this Administration and repudiating its works."

And voting in Romney? The guy who first implemented this model of centralized healthcare? How will that help? This problem runs far deeper than Mr. Obama presidency.
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written by DS, July 03, 2012
Chief Justice Roberts' role in this case brings up a larger issue. He is a practicing Catholic and played the pivotal role in allowing Obamacare to stand. Further proof that the issue is not so much policies being forced upon Catholics from the outside, but policies being enabled by Catholics in both the legislative and judicial branches.
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written by Ray Hunkins, July 03, 2012
Excellent, Professor. Two points: First, no solace can be taken in the Chief Justice's ruminations about the Commerce Clause.He was writing for himself. It is all dicta.

Second, if the hypothesis concerning the Chief Justice caving to pressure is true, he turned his back on his self-described duty to "call the balls and strikes". I am reminded of a quote from Winston Churchill on the subject of courage:
"One ought never to turn one's back on a threatened danger and try to run away from it. If you do that, you will double the danger. But if you meet it promptly and without flinching, you will reduce the danger by half. Never run away from anything. Never!"
I hope it is not true, but if the Chief Justice succumbed to pressure, or placed approbation ahead of duty, he failed in his duty to this Country. He failed a test of courage.
In making nominations to high office, the President, and the Senate in its advice and consent role, should vet for courage, the most important of virtues because it is the one on which all others depend.
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written by Hadley Arkes, July 03, 2012
If I’ve fallen into error, I couldn’t find a better or gentler writer to correct me than my own dear student, Scott Walter. But the problem here may simply be that I spoke in a kind of short hand, since I couldn’t cover everything that comes under the litigation over religious freedom. He is quite right that the provisions on abortion and contraception are subject to separate challenges on grounds of the First Amendment or the Religious Freedom Restoration Act (RFRA). And indeed many of our friends are at work in those suits. But the problem here runs beyond those suits. The deeper problem is that the liberal party in our politics has come to understand the “right to abortion” as nothing less than a first principle in our constitutional order, an anchor of “personal freedom.” Even if we win in the courts in the current crisis, the problem will be with us whenever we find the party of abortion in control of the Executive and Congress. They form a relentless engine to project their premises into all parts of our public policy. When medical insurance becomes open to public governance or regulation, they will be quick to insist that, among other things, abortion and contraception must be incorporated in anything that covers “legitimate medical procedures.”

In the contests in the courts, I think that our side has a better chance to prevail when we bring to our support a congressional act, that Religious Freedom Restoration Act. And in the same way, we are far more likely to secure religious freedom through a series of congressional acts. They are principally the acts that secure for people certain claims of “conscience” against policies that would oblige them to support or fund abortions and contraception. Those policies, extended persistently, have the best chance of undermining the surety of the other side that the right to abortion is never open to serious challenge. Yes, we may prevail in some of the lawsuits, but we should not distract ourselves from the hard fact that the relief may come only through a pro-life Congress and Administration.

Mr. Fahey is not particularly summoned by the candidacy of Mr. Romney. And I quite understand his reactions. But again we should not permit ourselves to be distracted from the plain facts: that we have a striking difference now between a party emphatically pro-abortion and one firmly pro-life. It matters profoundly as to which one of those parties forms the Congress and the Administration. We may recall H.L. Mencken’s line about those people who think that because a rose smells better than cabbage, it makes a better soup. Mr. Fahey has no enthusiasm for Mr. Romney. But the odds are heavy that Romney would make for a better soup.

I’m afraid that Mr. Smitty, usually so sober-minded, has permitted himself a rare bout of fantasy: There is no way that decisions of the Court, scaling back or even removing that right to abortion, would be greeted by anything less than outrage and denunciation as a result of anything John Roberts said or did in the decision on Obamacare. He bought himself, or us, no credit we can use in cases on abortion.

“Howard” falls into a venerable mistake about John Marshall and judicial review. We are not dealing here with some special power or authority invented by John Marshall in Marbury v. Madison. As Marshall himself reminded us, any constitutional order recognizes a difference between ordinary law and a more “fundamental law”—the “law” that tells us "how we make laws." That a federal law is made by a bill passing two houses of Congress and being signed by the Executive is something we know only because it’s in the fundamental law of the Constitution. The fundamental law then claims a logical preeminence over an ordinary statute. Marshall simply recognized that when an ordinary statute runs counter to the fundamental law, the fundamental law must prevail. What people often fail to notice is that Marshall claimed here no exclusive role for the judges: Executives and legislators, no less than judges, bore a responsibility to give primacy to the Constitution when considering the measures that come under their hands.

That notion of a set of laws based on first principles is itself a reflection of the logic of natural law. The remarkable thing is the way in which even Catholics often miss that sense of the Constitution. This is not a matter of John Marshall’s act of will, or his chutzpah in claiming authority. And we simply deepen our own misunderstanding if we describe Marshall’s act by flying to caricatures, while neglecting to read closely the reasons that Marshall himself supplied in explaining what he was doing. It may simply be that Marbury v. Madison remains one of the most cited cases of the Court—and one of the least read.
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written by Sue, July 03, 2012
DS said, " policies being enabled by Catholics in both the legislative and judicial branches."

Add to that Catholycs in the USCCB, which claims that the American bishops have stood for "health care for all" for many decades, and are determined NOT to repeal Obamacare.

How about the conflict of interest inherent in an entity (the government) dispensing and rationing health care to people who it also must support through welfare or other entitlements. Is not the temptation to (de)capitate not sufficient reason to reject socialized medicine. Socialized medicine didn't work for Hitler's "useless eaters", didn't work for the Soviet Union, whose dissidents got "free psychiatric care". Where it's not abridging life, coercing abortion/euthanasia, and gutting fertility in communist countries, it's oppressing free speech, free religion, parental rights, etc. in softer-communist countries like Canada or Sweden. What paradise-on-earth "health care for all" model could USCCB possibly have in mind for our dear country that was founded on the inalienable rights to life, liberty, and the pursuit of happiness.

Go, Amish!
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written by Athanasius, July 03, 2012
As Catholics, we should be concerned with truth and fidelity. A SC justice should rule according to truth, and be faithful to his high post. We don't really know CJ Roberts' motives, but I will offer the following: 1. If CJ Roberts' was more concerned with the reputation of the court than with ruling as he truly believed in this case, or if he was intimidated, then he has been unfaithful to his duty. This type of behavior is not virtuous, and undermines the very premise of our constitutional order. 2. If CJ Roberts' really believed what he has ruled, then I will suggest that the poor reasoning he used is unworthy of a Supreme Court justice, and we have the right to expect better. For the law as written clearly states that the mandate is enforced by a penalty, and the structure of it is as a penalty, not a tax. The more prudential action would have been to declare the law as written unconstitutional but advising Congress how it could have been rewritten to be constitutional.

In his ruling, CJ Roberts says that it is not the court's job to protect the people from the consequences of their political decisions, but this is only true if Congress and the President act within constitutional limits. It is a abdication of duty to allow a law that is unconstitutional to stand simply out of a misplaced desire not to seen as "activist". Activism on the part of courts means going beyond judging a law on its merits and either rewriting it without legislative input or ruling in a way that contradicts the constitution or places a judge's personal opinions in front of the written law. CJ Roberts has not acted with restraint by not overturning this law, but rather he has acted in the very way he decries by reinterpreting portions of the law in a way that was not intended, nor understood as such by either the Congress or the President. The well-written dissent makes this clear.

There seems to be concern among some that if the court overrules often, it is being activist. But if "truth" is the guiding light, then frequency is not the deciding factor of activism, but rather the nature of the laws. If a particular Congress or President (as seems to be the case currently) is constantly trying to push the limits of law beyond that which is constitutionally allowable, then the court is justified in frequent rebukes.

Catholics who believe that God is perfect truth should strive for a government that honors truth, and one that applies justly blindly regardless of the political outcome. One purpose of having a written constitution is to ensure permanency of truth in governance. CJ Roberts appears to either have sacrificed this in the name of short term political expendiency, or ruled in a negligent way that is unworthy of a Chief Justice.

In the end, God's provident goodness will prevail. But this ruling has made America a little less free and made creating just and clear laws a little harder.
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written by Louise, July 03, 2012
Paul, there is a difference between the powers granted to the State and those granted to the Federal Government and Romney has acknowledged this. I’m not arguing for State Obamacare but there is a difference.
While the R’s have made their share of stupid decisions when they were in power, they have not worked to undermine the foundations of our County as the D’s have. Witness the goal of destroying unborn babies, marriage, chastity, religious liberty, military cohesiveness, the commerce clause…I could go on. One has to admire their initiative at least in “accomplishing” so much in less than four years. I don’t want to give them another four to complete their perverse projects.
In every instance we try to achieve the most good that can be accomplished. As Pope Benedict said when he was the prefect of the CDF: “…the historical dimension requires men and women to live in imperfect situations, which are also susceptible to rapid change. For this reason, Christians must reject political positions and activities inspired by a utopian perspective…" Participation of Catholics in Political Life #7
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written by Michael, July 03, 2012
I was educated in liberal studies, thus no logic or legal training do I have. But from my big picture view of things, I'm wondering if the Chief Justice used his ruling and opinion as a tactical maneuver to provide coverage for a future, bigger ruling that is with the Supreme Court now or that he sees possibly coming up in the next 6-12 months -- whether it is a case having to do with mandates, religious freedom or something else related. What do your trained minds think?
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written by Hadley Arkes, July 03, 2012
I hope I can be forgiven an additional word to thank our readers for weighing in today, and point up two of them, beyond my comments at midday. Ray Hunkins catches something quite important when he suggests that John Roberts's argument, limiting the reach of the Commerce Clause, may be pushed to the side as "dicta"--that is, an interesting commentary but not strictly part of the holding because it was not necessary to the ground on which the case was decided (namely, the power of the Congress to tax). Ruth Ginsburg made an argument along those lines in her own opinion, and it should be taken seriously by people who entertain romantic notions of what the Chief Justice might have accomplished on the conservative side.

But I want to say a special word in support of Sue's comments. She touches something that I've been arguing should be at the core of the argument--not arguments over the Commerce Clause but appeals to a deeper sense of natural right. What Sue recognizes is that, beyond everything else, this is a life-threatening scheme. A system of medical care under the monopoly control of the government is headed inescapably for rationing, with the serious prospect that people will be denied life-saving care that they are willing to pay for themselves. The Left has no qualms about taking the argument to these issues of deep rights; but our own people are embarrassed to use that language and make that kind of argument. They abandon the field of moral reasoning to the people who would invoke a "higher law" of rights even while they deny the existence of moral truths.
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written by Dave, July 03, 2012
Thank you, Prof. Arkes, for a remarkable article. I fear I must demur, however, from the characterization of the GOP as "firmly pro-life." Many of the senior party leaders are pro-choice, and have been for decades. Social conservatives have fought hard to keep the pro-life plank in the GOP agenda, as they know too well that given the opportunity to overturn it, those senior party leaders would do precisely that. I believe the GOP is a political party whose attitudes range from embracement to toleration of the pro-life position -- and that the moment we pro-lifers take for granted the Party's support for the issue, the Party will ditch it. Perhaps that's pessimistic; but whoever thought Chief Justice Roberts would rule the way he did? In politics and law we can take nothing for granted.
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written by Gian, July 04, 2012
, Christians must reject political positions and activities inspired by a utopian perspective…"

The War for the Spread of Democracy would
fit this criterion, I think.
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written by Michael Paterson-Seymour, July 04, 2012
I cannot for the life of me see why the rule that laws should be interpreted so as to preserve their intention should have anything to do with the "consent of the governed."

In the Digest, the principle is most clearly expressed by Celsus (D 1.3.17, 18) - a friend and adviser of Hadrian

His friend and contemporary applies the same rule to pleadings and gives us the well-known maxim "ut res magis valeat quam pereat"
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written by Brian P. Rabbit, July 06, 2012
The United States of America does not have a principle of "consent of the Governed" as illustrated by the fact Many of the Governed either do not vote or are not permitted to vote: People convicted of a felony, non-Citizens, Children, the Apathetic, the Cynical, etc. Each Person in these categories are governed but do not give Their consent. The argument is invalid.

On the HHS mandate, I too am optimistic based on Justice Ginsburg's opinion, the Tabor case, and a plain text reading of the Religious Freedom Restoration Act. The government is not permitted to decide when One is exercising One's religion and, as such, is quite limited in the restrictions and requirements it can place on People.

And, just for the record, I am not Catholic.

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