Who will guard us from our guardians?

By Bob Fierro

By now most Americans paying attention know that the Affordable Care Act (ACA), sometimes called Obamacare, was declared to be constitutional by an uneasy alliance supported by an even more uneasy interpretation of Congress's constitutional powers.

In their defense of the law the Solicitor General and the government's lawyers had contended that Congress could force Americans to buy health insurance or face a "shared responsibility payment" based on Congress's powers to regulate interstate commerce. If that approach didn't hold they asserted that the Necessary and Proper Clause provided Congress the needed authority to compel the Republic's citizenry to make the purchase. Finally, almost as an aside, the President's Solicitor General argued that the payment was really a tax anyway, not a penalty for the failure to abide by a law. He made this argument despite the fact that the President himself had vigorously rejected all attempts to call the payment a tax.

Most of the court's members reacted predictably. The four liberal jurists, who see virtually no limits to the reach of the Commerce clause, embraced the government's first argument. The three true conservatives on the court, and the normal "swing vote" justice, had no stomach for allowing Congress to compel commercial activity so they could then regulate it. These four rejected all of the government's arguments. It was thereby left to the Chief Justice to align himself with one group or the other to settle the matter.

To the surprise of just about everyone, Chief Justice John Roberts joined the liberals in voting to uphold the law, but he did so while simultaneously rejecting their preferred legal theory. In presenting his own line of reasoning Roberts told the American people that if the mandated payment was a penalty the ACA would be unconstitutional. On the other hand he said that if the payment was a tax the law was constitutional because the Constitution grants Congress broad taxing authority.

In a dandy bit of judicial fox trotting the Chief Justice danced among earlier decisions of the court to conclude that the shared responsibility payment was really a tax. His tax-not-penalty position was reluctantly joined by the four liberals thereby producing a decision that limited Congress's power under the Commerce Clause but upheld the enforceability of the individual mandate. The baby not yet having been split enough, though, the court struck down the law's attempt to strong arm the supposedly sovereign states by threatening them with the elimination of all Medicaid funding if they refused to undertake a massive Medicaid expansion.

The two groups of four — the disagreeing assenters and the dissenters — wrote their own opinions making it clear that with respect to the individual mandate the Chief Justice was standing alone in a judicial "no man's land." Since announcing the decision Roberts has alternately been praised or condemned for his stance. The praise sees him as a paragon of judicial restraint permitting the legislature's will to prevail where there is even a chance that the legislature's act was within their constitutional powers. The condemnation sees him as a failed judicial conservative, not only being the deciding vote to uphold one of most far reaching and extensive federal power grabs in decades, but also creating a dangerous precedent that will facilitate such grabs in the future.

What are the American people to make of the path the Chief Justice opened into this brave new world? Consider.

First, the Chief Justice reasoned that the shared responsibility payment wasn't a penalty for a failure to obey a law, but a tax that only applied to a select group, i.e. those who didn't purchase health insurance. This bit of semantic creativity may or not be reasonable, but it is unquestionably unprecedented. As the four dissenters wrote, previous to this decision the court had "never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power — even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty."

Next, the Chief Justice either ignored or considered unimportant the procedural requirements that attach to Congress's taxing power. The Constitution sees taxes as being used for raising public revenue and such bills must originate in the House of Representatives. The ACA comports with neither requirement. Thus, the Chief Justice deferred to Congress's policy making while not deferring to the Constitution's plainly stated procedural requirements that govern such policy making.

Further, the ACA, unlike most lengthy and complex pieces of legislation, contained no severability clause. Severability clauses are bits of legal machinery that essentially say that if a court finds one portion of the law inapplicable or unconstitutional, that the remainder of the non-offending language can remain in force and effect. In the absence of an explicitly stated severability provision, the normal standard is that the court may decide what to keep and what to toss, which the court did. Yet, in striking down the ability of the federal government to force the states to expand access to health coverage via Medicaid, while upholding the mandate that individuals must possess health insurance, the court severed one of the bill's principal means from its end.

It is worthy of note that none of these problems adheres to the dissenters' opinion, because they would have simply struck down the entire law. Furthermore, two of three issues would have been moot had the assenting minority's view been adopted as the majority opinion. These troubling questions, and potentially others, about judicial consistency arise uniquely from the manner in which the Chief Justice formed his opinion to uphold.

Beyond even these issues, to add salt to the wound, the Chief Justice, in an ill-advised attempt to inoculate his legal theory from anticipatable criticism, proceeded to admonish the people who will have to live with the consequences of his ruling. In a now oft-quoted section of his opinion he wrote, "It is not our job to protect the people from the consequences of their political choices."

This line has been taken by many conservatives as a call to action, to renew their efforts to repeal the ACA through the electoral process. So far so good. Yet, ironically it calls to mind another troubling question. Since the Chief Justice's presence on the highest bench in the land is a "consequence" of political choices — he being nominated by a political figure and confirmed by other political figures — the people might rightly ask "Who will protect us from you?"

Perhaps, one of the calls to action the people now need to consider is whether it is such a good idea to confer lifetime appointments upon those who appear to esteem the institutions enumerated in the Constitution over its principles. The answer to the people's question may be that to protect themselves they may need to find a means to curb not only their elected officials' appetite for overreach, but also the appetite of their appointed ones.

© Bob Fierro