As the impact of the Supreme Court’s ruing on the Obama health care bill begins to sink in, one thing is for certain: nearly everyone is surprised.
On the Left, Democrats and supporters of President Obama had all but thrown in the towel; most expecting that the emerging block of Justice Kennedy siding with the Court’s four conservative members would rule the individual mandate provision of the law, its centerpiece, unconstitutional. Such a ruling would have, according to opponents, forced the entire law to fail. After oral arguments, most legal experts and pundits agreed that ObamaCare was a sinking ship.
But anything can happen in Washington, and on the Right, Republicans woke up the morning after with quite a large headache. Confident of victory only 24 hours earlier, they are now left to wonder how a conservative justice, most especially the chief justice, could abandon them. I suspect General Cornwallis felt much the same way as his veteran troops surrendered at Yorktown to an untrained army of merchants and farmers while his military band played, “The World Turned Upside Down.”
How could Chief Justice John Roberts join Justices Ginsburg, Breyer, Sotomayor, and Kagan in upholding the centerpiece of the Obama administration’s domestic policy? Perhaps even more importantly, has this decision turned the political world upside down?
Well, one thing is for sure, almost no one foresaw such an outcome. Legally speaking, the 2010 Patient Protection and Affordable Care Act emerged largely unscathed, albeit without a true majority. The Court’s conservative wing, Scalia, Thomas and Alito were joined by Kennedy in casting the law as unconstitutional under both the Commerce Clause and the Necessary and Proper Clause. In their blistering dissent, these justices also ruled out any possibility that the law should have been upheld as a valid exercise of congress’ taxing power. The court’s four liberal leaning justices all saw it differently and expressed little to no concern with the constitutionality of ObamaCare.
Appointed by President George W. Bush in 2005, Chief Justice Roberts was nominated to replace Chief Justice William Rehnquist, a distinguished conservative justice who had served on the Court since 1972. Most interestingly, Chief Justice Roberts actually clerked for then-Associate Justice Rehnquist between 1980 and 1981.
Most view Chief Justice Roberts as a pragmatic, conservative jurist, and so his decision was unexpected by most, but not all. A small minority of apolitical legal experts believe his move was not unexpected at all, and that his decision reflected the qualities of a true and impartial scholar.
As for the decision itself, Roberts agreed with the more conservative justices, that the individual mandate requiring Americans to buy health insurance was indeed unconstitutional under the Commerce Clause. If his analysis had stopped there, the entire law would have most likely been struck down. In fact, it appears from some insiders that he was originally going to be part of a decision that would have declared at least the individual mandate unconstitutional. Instead, he went on to opine that ObamaCare was not a good or service at all; its provisions, including the penalty should one not purchase insurance, is simply a tax, and Congress definitely has the power to tax. Moreover, a tax levied by the federal government can also be punitive in nature.
Roberts tried to offer little assurance for conservatives when he suggested that it was not the court’s role to decide whether the act made good public policy. He wrote that if citizens were unhappy, then they were best left to exercise their voting rights, as the courts cannot “protect the people from the consequences of their political choices.”
The Court did, however, strike down the provision of the law that withheld funds from the states not complying with the law’s expansion of Medicaid. This suggests that Congress is not free to take away the existing program if a particular state decides not to participate in the new program.
Chief Justice Roberts’ vote is not that surprising; he voted as to uphold the traditional interpretations our of nation’s Constitution. An activist or partisan jurist may have contorted their analysis to fit the pre-determined conclusion. Instead, could it be said that Chief Justice Roberts did not contort the law to fit his own outcome, that he simply ruled on the matter without regard to its actual impact on politics? In fact, many justices hold to the theory that laws should only be struck down if there can be no other outcome.
Although a huge victory for President Obama, it may be short-lived. Political analysts believe this decision may actually hurt the president by energizing and rallying Republicans around an otherwise lackluster candidate. ObamaCare may be their “Remember the Alamo,” and moreover Republicans will likely play clips of President Obama, a constitutional law professor, saying that the Supreme Court shouldn’t overturn a duly elected law. Nevermind that every first year law student knows better, see Marbury v. Madison, 5 U.S. 137 (1803), the case which formed the basis of judicial review.
Had President Obama’s unpopular health care law been declared unconstitutional, such a decision may very well have put Republicans at ease while energizing the Democrats to come out fighting in November. Remember the Supreme Court has been on thin ice with Democrats ever since Bush v. Gore in 2000. Instead, Democrats are left with no ammunition or signs that the Supreme Court is actually biased against the left. In contrast, Mitt Romney’s campaign reportedly raised almost $5 million in the 24 hours after the decision was announced.
Democrats will be going into the fall touting the president’s success in doing what no other president has managed, comprehensive health care reform. The Supreme Court victory is considered a significant policy achievement. Republicans, on the other hand, will now have significant ammo that ObamaCare is nothing more than an egregious tax which will result in socialized medicine and even higher health care costs for all Americans. Keep in mind that Obama administration officials have gone out of their way to say that health care reform was not a tax and would lower costs for all, despite legal briefs from the administration admitting that it was a tax.
Did the Supreme Court get it wrong? Only time will tell, but one thing is for certain: their decision means that health care will be the hot-button issue for November.
Read it on Forbes