Even as more qualified legal scholars than I could ever hope to be analyze the ramifications of U.S. Supreme Court Chief Justice John Roberts’ convoluted ruling on the so-called Affordable Care Act (more appropriately dubbed “Obamacare”), a new sport has arisen among pundits, talking heads, court watchers and other members of the chattering classes — a game of attempting to determine Roberts’ motive for upholding the president’s signature legislative achievement.
The latest speculation is that Roberts was pressured to change his vote at the last minute. The theory goes that the Chief Justice was poised to side with the conservative wing of the court — of which he was thought until now to be a member — but, for whatever reason, decided instead to twist himself into a judicial and political pretzel to uphold the legislation as constitutional. High-sounding terms like “the integrity of the court” and “preserving a legacy” have been bandied about as if they mattered. Meanwhile, a majority of Americans are asking, “What about the integrity of the Constitution?”
Whatever his motives, Roberts seems to have gone to great lengths not only to find a loophole that would allow him to proclaim the law constitutional, but also to educate the electorate on its responsibilities in what’s left of this Republic of ours. And in this task, his decision was brilliant. In one single ruling, he threw the ball back into the laps of the American people, and in doing so, he has handed us the tools with which to reverse this legislation.
“Members of this Court are vested with the authority to interpret the law,” Roberts wrote. “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.”
This brings us to what may have been the real reason for his decision and the way in which it was written. For decades, beginning with FDR’s New Deal, the courts have allowed an ever-encroaching federal government to use the excuse that they were regulating commerce whenever they wanted to expand their power. Not this time. While Roberts sided with the liberals on the Court in declaring the law constitutional, he denied them the prize they so longed for: another escalation of federal authority under the Commerce Clause. That argument did not fly with the Chief. Instead, he wrote that they have the right to do what they did only by virtue of their taxing authority.
By narrowly defining the power of Congress and the executive branch to enact this law under their power to tax, Roberts has handed Mitt Romney and the Republican majority that could well be swept into office with him in November the tools they need to rid us of this monstrosity. Most bills cannot pass the U.S. Senate with fewer than 60 votes because of the opposition’s power to filibuster legislation they don’t want brought to the floor. The one exception is a procedure known as reconciliation, which can be used on budgetary matters. If Obamacare’s mandate is a tax, then Roberts’ ruling puts it into that category. Reconciliation requires a mere 51 votes in the Senate — a number Republicans could easily control in the next Congress.
So let’s review: Over the strenuous objections of the voters, Obamacare passes as a purely partisan piece of legislation. The people hated it at first glance and hate it still. The Supreme Court upholds the constitutionality of it, but the Chief Justice writes an opinion stating that elections have consequences and the only thing for it is to throw the bums out. He hands Congress the tools to repeal the bill. Mitt Romney says, “The only way to get rid of Obamacare is to get rid of President Obama.
Roberts could easily have joined with Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito in voting to strike down Obamacare in its entirety. Like most conservatives, I wish he had. But he has given the people a tutorial on how to reverse the course of Barack Obama’s hope and change, and that makes this not just the most important election of my lifetime but also the most exciting.