Roberts flummoxes the Democrats

By Stephen B. Young The Daily Record Newswire Until his opinion a week ago upholding "Obamacare," I had no sense that U.S. Supreme Court Justice John Roberts would go down in our history as a worthy strategist of Republican jurisprudence. I saw him as a mediocre stalwart of partisan subordination of the law to more base objectives. But his health care opinion has changed my mind. He has been strategic in a worthy way, but in a conniving way as well. First, his constructive contribution: He fulfilled his primary duty as a chief justice. He arranged a result in upholding -- albeit on very narrow grounds -- the constitutionality of the Democratic Party's core approach to proving health care for all Americans; he thus sustained our noble tradition of putting law over politics. Had he joined with the four conservative justices to declare Obamacare unconstitutional, he would have given substantial credence to the accusation that our Supreme Court has been reduced to an arm of the Republican Party. After Gore v. Bush and Citizens United and many other cases, there is a perception that the court follows an ideological agenda and not the law. Only the legitimacy of the law keeps a constitutional republic sound and civil. If the law does not trump religion, ideology, politics and all personal preferences, there is no republic, only squabbles and power struggles, self-seeking and factionalism without redemptive merit. In recent decades, both left and right have moved further and further away from respect for the law and closer and closer to an embrace of pure politics. Lawyers call this "results-oriented jurisprudence:" We decide first what outcome we want and only later come up with reasons to support our desires. That is not law, only willful petulance. The legitimacy of court-made law comes not from the authority of the court but from the reasoning behind the decision. Bad reasons, or worse, no reasoning at all, destroys respect for the law. In upholding the Obama health care law, Chief Justice Roberts was playing politics but at the level of historic statecraft. It was protecting the Supreme Court and all our courts from partisan disrespect and loss of legitimacy. It was saving our Constitution from the corrosion of petty factionalism. Roberts pulled the Supreme Court back from a confrontation with the elected branches of our government in the White House and in Congress. It is never the Supreme Court's role to confront politically the will of the people expressed through elections, but only to align that will consistently with constitutional norms and objectives. Whenever the Court has taken an overt ideological stance (Dred Scott, Plessy, Lochner, Schechter Poultry, etc.), it has later been forced to recant one way or another. With so much distrust abroad in the land among the people, especially of our Congress and politicians, we don't need more erosion in public faith toward the law. Roberts held the line on the Court respecting its limited role under our Constitution. Second, Roberts employed a brilliant sleight of hand to give President Obama and the Democrats a tactical victory while forcing them to accept strategic defeat in the long run. In this, he repeated Chief Justice John Marshall's great victory over the Jeffersonians in the famous early case of Marbury v. Madison. Justice Marshall was a Federalist opposed to Jefferson. Marshall believed in an independent Supreme Court strong enough to have its opinions check actions by the President or the Congress. Jefferson wanted a weak court, as its members were not chosen through elections. Marshall believed in the rule of law as the foundation of the republic; Jefferson believed in popular action, more in keeping with the practices of the French Revolution. In Marbury v. Madison, Marshall crafted an opinion that gave the Jeffersonians victory in the case but on grounds that installed Marshall's views as the heart and soul of all subsequent constitutional law and practice. William Marbury was a minor Federalist official who wanted Jefferson's Secretary of State, James Madison, to give him a commission that had been signed but not delivered by John Adams, the now former Federalist president. Chief Justice Marshall ruled that Marbury deserved to have the commission delivered, but that the congressional act giving the U.S. Supreme Court authority to order it done was unconstitutional. So, the Jeffersonians won the case: Madison did not have to deliver the commission. But Marshall won the war over constitutional government, since the Jeffersonians -- in accepting the result in the case -- also had to accept his reasoning that the Supreme Court had final authority over the Congress and the President to say what the law is. Similarly, Robert's ruling upholding "Obamacare" is another Pyrrhic victory for the Jeffersonians, who today are our Democrats. They got "Obamacare" just as the Jeffersonians got to deny Marbury his commission. But Roberts got limits placed on the Congress and the president just as Marshall had done in 1803. In his opinion, with the support of the current court's four liberal justices, Roberts has thrown up a wall of constitutional jurisprudence against further expansion of the "nanny state." His majority opinion limits the use of the Commerce Clause of our Constitution to police the way we live our lives. Roberts accepted, one might say, the use of the clause to uphold the New Deal's welfare state as augmented by Lyndon Johnson's Great Society and Nixon's environmentalism. But he provided grounds for stopping there and not going any further in giving the federal government added authority to interfere in personal autonomy. Roberts wrote last week that if the Commerce Clause were to permit the federal government to impose a mandate to contribute to a national health insurance program, it could in the future impose mandates to conform individual behaviors to congressional preferences in markets for food, clothes, transportation, shelter, energy, and more. With regard to food, the Congress, Roberts wrote, cannot under the Commerce Clause order that we all buy vegetables to eat more balanced diets and thus lower the costs of health care for everyone. The Commerce Clause does not give the Congress power to compel any of us to engage in production, consumption, sales, purchases, or other market activities. The Commerce Clause, Justice Roberts said, is "not a general license to regulate an individual from cradle to the grave." Any police power to do so, he said, rests solely with the states. And so, last week, political plans for a robust, effective, nanny state taking over America became unconstitutional. Supporting his main conclusion on the limited reach of federal authority over individuals, Justice Roberts ruled that the tax penalty to be used with Obamacare to induce individuals to pay into a national health care system did not open the door to extreme uses of the federal power to collect taxes. Federal taxes, Justice Roberts said, may not be used to coerce and regulate. When exaction would become so punitive, then the taxing power provided by the federal constitution does not authorize it. That the power to tax cannot become a power to destroy is now even more a rule of constitutional law. And finally, in his opinion for the court, Roberts put limits on the power of Congress to compel states to enact laws under their police powers, according to federal preferences. Where Congress has no power under the Commerce or other clauses of the Constitution to institute a nanny state, it cannot force a state to do so using its police powers of local sovereignty. The Affordable Care Act signed into law by Obama in 2010 provides funds for a transformation of Medicaid from a set of programs to help people with special needs to a general health care system for all those living on incomes less than 133% of poverty. The Medicaid program is a voluntary contract between the federal government and a state. If the state agrees to federal policies, then the federal government will give it grants to carry out those policies. If the state does not agree with the policies, then it need not adopt the program. But the Affordable Care Act requires that states suffer a penalty if they do not agree to convert their existing Medicaid programs to a general health care provision system. If a state does not become part of the Affordable Care Act system, it will lose 10 percent of the federal monies it has been receiving for its older style Medicaid programs. Roberts wrote that the Congress may not use its power to spend for the general welfare to compel states to enact a program favored by Congress. Under our federal system of divided powers, where the federal government has no express authority under the Constitution, it can neither directly command the states nor indirectly coerce them to do as it might wish. Thus, in keeping with traditional state's rights thinking, Justice Roberts left the states free to reject expansion of Medicaid without paying any penalty. The Affordable Care Act will now go forward, but in the future, thanks to Roberts, Democratic Party majorities in the Congress will find it very hard to impose their lifestyle preferences on their fellow Americans. Published: Fri, Jul 6, 2012