Who Will Guard Us From Our Guardians?

Editor’s Note: the following is intended to be a counterpoint to contributor Ken Connor’s recent article, “Are We Being Too Hard On John Roberts?”

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 principle 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 has been a Florida resident since leaving the Army over thirty years ago.  He is a graduate of the United States Military Academy, a board member of the local West Point society, and has been active in political and social issues for over 25 years.  He is also a Board Member of the Center for a Just Society.

Cover Image Credit: Chip Somodevilla/Getty Images North America

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  • Poppiexno

    Excellent analysis. I have long thought that the constitution is deficient in it’s construction of the Supreme Court. I think the writers were a bit naive when they thought about the kind of people who would sit on the court and what would be their function. I think most of them would be shocked to read it’s history right down to the present.
    This law will have profound effects on our society, not only for its content but for the precedent it establishes. Once again we have lost some of our freedom; sadly, too many think this is a good idea. 

  • Supreme Court justices can be impeached. It may be time to do just that, it would sent quite a message to congress.

    Who  could organize such a feat, maybe the Tea Party.

  • Clement_W

    Since when did God take away our own right and responsibility to take care of ourselves? Blaming the Chief Justice of the Supreme Court for refusing to take on the blame for what we, the voters, did time and again choosing Presidents, Representatives and Senators who promised what they could not deliver without taking it from our neighbor is childish and stupid.

    ObamaCare is nothing new, HillaryCare of Clinton’s first term was the template. We want to continue the way we are, therefore, we must take the responsibility for the State of the Union. Presidents give the speech, but, does what they see as the State of the Union match what the 10 Commandments and the summarized 2 commandments in the New Testament would lead to a peaceful co-existence among the children of God?

  • Pargontwin

    Hilarycare gave us HMOs, which took away our freedom to make our own decisions regarding our health care.  In some cases, you couldn’t even choose your own doctor.  Even worse, it did away with the deductible:  Once you paid a certain amount out of pocket for doctor visits, you didn’t have to pay any more for that year.  Now we have a permanent per-visit deductible that they call a “co-pay.”  A skunk by any other name still stinks.  At least I had the right to tell the insurance companies where to go; most doctors and pharmacies offer reduced rates for the uninsured, at least where I live.

    Obamacare is more of the same, only worse.  Now they’re telling me I have to spend money I don’t even have for insurance that’s going to dictate my health-care options?  I DON’T THINK SO!!!!

  • James Stagg

    I agree, and I agree further.  I think Justice Roberts to be the smartest man in DC.  This is my immediate reaction after the ruling was announced:

    Besides the part of the ruling which prevents (potential future cases) federal blackmail of states, this is my take on that sly, young rooster (Roberts), who has prevented the fox (BOZO) from raiding the hen-house:Democrats and other socialists may celebrate this SCOTUS decision; but, it’s too bad that most people in the U.S. disagree with their view.  I look forward to a new Congress, after the coming election, with Republican majorities in both the Senate and House, with a Republican president, who will completely overturn this monstrosity which has been fraudulently imposed on the American public.  How’s that for a contrarian view of this ruling.  This decision will galvanize the Tea Party, of which I am a proud member.To be positive about this decision (there are potential conflicting layers) of the Supreme Court, I think Justice Roberts pulled off a magnificent coup on this (un)Democratic administration.  As thinkers absorb this decision, I believe they will reason accordingly, and refute the socialist knee-jerk reaction.  I’m afraid Obama’s past incautious remarks have come back to haunt him, although he may not realize this until he is decisively defeated in November.For those who are celebrating, consider three things that Justice Roberts has engineered:1.  He has isolated the Supreme Court from any Democratic Party criticism for the remainder of this presidential campaign.2.  He has removed the ONE potentially major claim that Obama could campaign on…..that he tried to pass healthcare “reform”, but that darned old Republican-dominated Supreme Court negated his massive (and fraudulent) efforts.  Please note that NOW, Obama must run on a healthcare “reform” platform which most voters detest, something he has avoided thus far.3.  Roberts has punted the “reform” law back into Congress, where it will be dealt with, quickly, by the Republicans after the election.This should be a lesson to the Democrats (eventually, when their brains catch up with their emotions), and their (socialist) supporters.  There is a specific reason why I use “socialist”; the only countries where “universal” healthcare has been implemented, and has subsequently failed miserably (hint: outrageous waste and cost) have been ruled by either overt socialist parties or socialist-oriented, like in Britain and Canada.

  • choose_life_now

    STEPHANOPOULOS:  That may be, but it’s still a tax increase.
    OBAMA:  No.  That’s not true, George.  … to get health insurance is absolutely not a tax increase. 
    STEPHANOPOULOS:  But you reject that it’s a tax increase?
    OBAMA:  I absolutely reject that notion.

    In 2009 the US Federal government spent approximately $3,500,000,000,000, with an income of approximately $2,100,000,000,000. In 2011 spent $3,800,000,000,000 with income of 2,500,000,000,000. Our governments debt at the end of 2011 came up to be $14,100,000,000,000 and by the end of this year over $16,000,000,000,000. Now with this new so called Affordable health care the debt is to increase exponentially.

    By the end of Pres. O’s first term, nearly 5 million American babies will have lost their lives at the hands of evil abortionists thanks to the Dems, if re-elected, another 5 million dead! and untold millions aborted by chemical means paid for by Catholic employers who were forced by your HHS administrator! At the final judgement, those souls who were not given the chance to live and love in this world, not given the chance to find a spouse and with the help of the Creator, co-create more servants for the Him, will surround the the Just Judge, and each individual Catholic will face them. Which Catholics, while holding in their hands the 2012 Presidential ballot, will ask those poor souls to pray to HIM for Mercy? Think about it.