Once the initial shock of Chief Justice John Roberts’ decision to uphold the Patient Protection and Affordable Care Act (ObamaCare) began to wear off, many conservatives and non-conservatives began to spin the decision as victory for conservatives.
Allah has a good round up of this “the operation was a success but the patient died” line of thinking.
Let me take a couple of examples.
Writing in Slate, Tom Scocca makes the unsupported assertion that Roberts and the dissenters “gutted” the Commerce Clause.
Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).
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The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.
All I can say to that is, if only!
Sadly, this “gutting” and “substantial rollback” is only in the minds of people who don’t seem to notice not a single Commerce Clause case was overturned yesterday. Wickard v. Filburn and its progeny still live.
What the Court said yesterday was the Commerce Clause may not be stretch beyond any limit at all and that Congress’ novel attempt to create commerce in order to regulate is may not stand. Keep in mind this was not a power anyone thought the Congress had since it’s not something that had been tried before in the entire history of the United States.
Calling this a “victory” or “a gutting” is like saying someone who was mugged “won” because they were only beaten to a bloody pulp instead of killed. Well, OK but in the real world the proper outcome is not to be assaulted at all. That’s the true victory.
Of course this also ignores two minor details, the mandate stands and now Congress may impose a penalty, er tax, on economic inactivity, something no one thought they could do before yesterday. Do you really think there aren’t liberal policy gnomes in Congress, think tanks and universities already hard at work coming up with new and exciting ways to make mischief with the tool Roberts just handed them? If you don’t, you’ve missed the last 80 or so years of the Democratic (and sadly, all too often the Republican) party’s history.
George Will makes a similar argument but from a conservative point of view.
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
Pardon me if I’m not impressed.
We’ve been down this “the court is reining in the Commerce Clause!” road before. The last time the Court tried to place limitations on the use of the Commerce Clause were in the Lopez and Morrison cases. Sadly this laudatory trend was killed in the cradle by the noxious Raich decision (authored by conservative hero Antonin Scalia of all people).
Why would anyone think that this ObamaCare decision (which dealt with a unprecedented assertion of congressional power) will have a more lasting impact that Lopez and Morrison (which dealt with more mundane exercises of Commerce Clause authority)?
It’s far more likely that future Courts and Congresses will simply look at the rejection of this unique theory as a one-time occurrence (which Roberts provided a work around to anyway via the Taxing Power).
The bottom line is that no other law or Congressional theory of Commerce Clause power was impacted by yesterday’s decision. Congress still can make as much mischief as they had from the New Deal.
Same Trende agrees that Roberts handed conservatives an important victory while preventing a showdown with the President over the Court’s legitimacy. He analogizes yesterday’s decision to the seminal case on judicial review, Marbury v. Madison.
One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.
But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.
So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn’t stop there — to Marbury’s detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.
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But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented — which is to say, most observers on both sides who have been ranting about the Constitution for the past few months — this is a clear win for the Obama administration, at least in the short term. By removing most legal impediments to the implementation of the law, the odds that the president’s signature legislation will eventually be implemented have risen.
The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.
But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on.
Comparing the ACA to Marbury strikes me as a bridge too far.
First of all, this isn’t 1803 (less than 20 years into the republic) nor is the idea of judicial review a novel new theory being tried out for the first time. The Supreme Court has a long history of decisions and it’s role in the American political system, while often controversial and divisive, is well established.
On a practical level Marshall gave up something small, original jurisdiction over Writs of Mandamus, in exchange for something huge…the power of judicial review. Roberts traded an outer marker on the Commerce Clause that no one had ever considered reaching until two years ago for…well, nothing. The statute stands. He even threw in “a player to be named later” with his unique idea that Congress may tax economic inactivity.
What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).
In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.
The only people who ever insist a loss is actually a win are people who just lost. We need to fact that there is no pony underneath all of this, there’s simply a giant pile of manure.
*That’s not to say all the contentious decisions of those courts were wrong (Brown v. Board of Ed comes to mind as a precedent busting case that was most certainly correctly decided) just that the liberal forefathers of the people Roberts supposedly wants to keep the respect of, never showed that respect to others.
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