There is a lot of conflicting opinion being fired at the US Supreme Court’s ruling(PDF) on “Obamacare”. It is certainly a curious ruling both on first and subsequent reads. I think the opinions in the decision make a great deal of, perhaps complete, sense when viewed in the terms of ‘doing a Marbury v Madison‘. That was a decision written by Chief Justice Marshall in 1803. From that decision, Marshall is regarded as the founder of the Supreme Court and the Judicial branch as it came to be understood and accepted in the balance of powers.
In this article, I am not addressing the merits of the Affordable Care Act, I am speaking to the Constitutional elements at work in the decision.
Roberts declares his view of judicial legislating in one succinct sentence. “It is not our job to protect the people from the consequences of their political choices.” Notice he said “political” choices. If something can be allowable under the Constitution, then a restrained Court goes out of its way to accommodate it to the Constitution. If something is Constitutionally permissible, then whether or not to do it is entirely within the sphere of politics, not Constitutional law. We will never find perfect masters and expecting the Supreme Court to attempt that role is contrary to limited government. Roberts appears to be channeling Mencken with this declaration. Roberts’ opinion allows the ACA “penalty” as a taxing authority of the Federal government. The wide scope of the taxing authority is in the Constitution and, with the help of the 16th amendment, almost unlimited. Congress has long used this power to enact “sin” taxes on things like alcohol, cigarettes and even luxury yachts. Congress has long used the tax code to incentivize politically favored behavior, for one example, taking out a home mortgage. Regardless of the “exemption” language, in actual consequence the failure to take out a mortgage results in a tax penalty paid by those who do not take out mortgages. Low enough income thresholds make this “penalty” for not taking out a mortgage meaningless, just as they do for the healthcare “penalty”. Roberts sees the two as a distinction without a difference and was conceding no ground that hasn’t already been long lost, if ever held.
What is the up side? First, by finding this to be a tax the Court has left it wide open to legal challenge on the grounds that it originated in the Senate. Under the US Constitution, Article I, Section 7, Clause 1, “All bills for raising Revenue shall originate in the House of Representatives“. This bill originated in the Senate. The first time somebody challenges the origination of this tax, it must fall on that “technicality” and to enact it, the House must originate and pass the taxing element as a separate bill and the Senate must concur. Allowing for complete severability (the parts that don’t violate the Constitution are allowed to continue unimpeded), that enforcement tax will need to come up as a new bill in the House and be passed by the Senate and signed by the President. Just a long shot guess, but I don’t see that happening. I see at least 5 SCOTUS justices who will grant cert (or more likely let a lower court ruling stand) and strike down the ACA tax on origination basis if the President continues to pursue enforcing it, especially since the decision explicitly permits pre-collection legal challenges that are normally not permissible for tax challenges. To pass a tax of that magnitude after 2010? Not gonna happen. We are safe from this particular “mandate”.
What else happened in this ruling? To the best of my recollection (but I’m not a lawyer) this is the first time I have seen such a clearly enunciated explication of enumerated power to the Federal government and plenary power to the States. In this case, Roberts refers to the “police” power as being exclusive to the states. “Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).” That was an interesting choice of cases to cite as it referenced Lopez favorably and rejected Wickard. I wonder if this is telegraphing the future reining in of out-of-control Federal police powers. I suspect so. In the very next sentence, he references New York v. United States. This paragraph is worth quoting in its entirety. I provided the Wikipedia links.
“State sovereignty is not just an end in itself: Rather,federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives,liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).
Previously, I quoted what I think is Roberts’ enunciating statement of this opinion. Here is the quote in full context.
[...] Members of this Court are vested with the authority to interpret the law; 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.
Our deference in matters of policy cannot, however,become abdication in matters of law. “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.
The questions before us must be considered against the background of these basic principles.
Did you catch that bombshell that slipped in there? “The powers of the legislature are defined and limited“. This may be transparently obvious to those of us who take contracts, and in particular the Constitution as a contract, seriously, but once FDRs eight SCOTUS appointments took control, that statement became ideological heresy. To hear it once again stated by a Chief Justice writing a majority opinion in a landmark case is grounds for celebration. When Pelozi notoriously responded “Are you serious! Are you serious!” when questioned whether the legislature had the Constitutional authority to mandate the purchase of healthcare, she wasn’t playing politics. She is from the school of thought that believes that the Commerce Clause, the Necessary and Proper clause and a couple of other clauses mean that Congress may do anything it pleases if it first recites a magical liturgy containing one or more of those phrases. It is the same sort of thinking that lead them to believe that calling a tax a “penalty” could make it not a tax; for them words mean what you need them to mean. There have been signals that the Court has been heading towards limiting the Federal scope for some time now but with this decision, the Court’s change of course is firmly established. The clear and unequivocal statement that will ring longest from this decision is that there really are limits on what the Federal government may do. To this Court, the Constitution really does appear to mean something.
I’ve run out of steam here, but Randy Barnett, Tom Scocca, Jay Cost, Ezra Klein, and Walter Russell Mead have some interesting takes on the decision and I probably could have saved myself the time of writing this if I had found Sean Trende’s article sooner.
In conclusion, I think this has been a very good week for limited government. For the first time in the history of the United States, a US Attorney General has been held in both criminal and civil contempt for concealing information from Congress. This is the strongest check I have seen on the imperial presidency in my life time, far more significant than Watergate IMO. A traditionally compliant Congress is demonstrating that it takes its oversight responsibility seriously. With a vote of 255-67 including 17 Democrats, this truly is the people speaking and not the Republican party hierarchy (who probably do not like the precedent). The very same day the House cast those votes, the Supreme Court hands down a decision that is a major step in the process of placing the Federal government back within its Constitutional restraints. A good week indeed.