Roberts’ Decision Will Outmaneuver Obama Long-term
Friday, June 29, 2012 at 10:18AM
Kevin Goll

Chief Justice John Roberts had a choice to make in approaching his ruling on the Affordable Care Act: 1. Deliver a short-term blow to the Obama administration and risk an enormous backlash; or 2. Deliver the long-term death blow to the Obama administration and to the progressive cause of steadily increasing the government's role in healthcare until we get to single-payer. 

He chose option 2, and played a difficult situation brilliantly. Looking at the decision and the political fallout, I see Roberts' maneuvering as shrewd, pragmatic, and beneficial to the conservative cause. Chief Justice Roberts wrote a readable and historically-rich opinion. Even though the Act's individual mandate was upheld as a "tax," Roberts did several things conservatives should immediately applaud and much that conservatives will applaud long into the future. 

The Opinion

Roberts immediately smacked down the administration's argument that the Affordable Care Act's individual mandate was constitutionally permissible under the commerce clause. Critics rightly argued allowing the government to regulate people not purchasing health insurance would create a virtually limitless power of government regulation under the commerce clause. Roberts settled this argument on the side of conservatives and upheld needed limits on the commerce clause.

The Affordable Care Act provides an enormous expansion of Medicaid, essentially extending it as a tax-payer funded healthcare option to adults who cannot afford private insurance. Along with this expansion, the Act contained a provision in which the federal government can deny funding for existing Medicaid programs to states who refuse to participate in the Medicaid expansion from the Affordable Care Act. Because the federal government provides so much of the states' existing Medicaid funds, this functions as federal bullying at its worst. In the opinion, Roberts strikes this down as well. 

Chief Justice Roberts upholds the Affordable Care Act's individual mandate under the administration's alternative argument—that the "penalty" charged to people who do not buy insurance in actually a "tax" permissible under the power of Congress to tax. Whatever you think of his argument, Roberts is on constitutionally solid ground here. He correctly points out that if there is a way to read a statute as constitutional, it is the court's job to do so irrespective of whether a "tax" is mislabeled as a "penalty." Congress' taxing power is broad, and Roberts rests on this to uphold the Act. 

In doing so, Roberts gives us a narrow opinion which does little more than uphold Congress' power to tax. In addition to what I previously mentioned Roberts struck down, he goes out of his way to highlight some of the more outrageous parts of the Affordable Care Act. If one does not know the parade of horribles in the Obamacare law, Roberts' opinion is an excellent primer. I do not think that is an accident. Roberts also mentions several times that it is not his job to comment on whether or not the law is good public policy. The implication is clear—he does not think it is. Lastly, Roberts did nothing to close the door on future challenges to the bill over religious freedom, more good news for those on the right. 

The Politics

There are five political takeaways I see from the ruling.

First, Chief Justice Roberts is very aware of our particular moment in history. He knows the country is divided, and the court has been criticized (rightly or wrongly) as being too politicized. With his ruling, Roberts removed the whiff of partisanship and obstructionism from the court. Striking down the law in its entirety would have invited the media drumbeat up through election day that the conservative-activist-racist wing of the Supreme Court could not wait to strike down the central achievement of the first black president.  

Secondly, by ruling it a tax, Roberts forces President Obama to run on the Affordable Care Act in the worst way possible. Striking down the entire law would have energized the left and allowed Obama to run against the court as well as Congress. Upholding the entire law would have been a validation of Obama. Instead, Roberts found a way to quietly fence Obama into a very difficult position. When he mentions the Affordable Care Act, President Obama will be reminding the country it is a massive tax increase even though he assured us it would not be. Good luck with that, Mr. President.

Thirdly, the ruling struck down the expansion of government power conservatives most feared—the limitless expansion of federal power under the commerce clause. Leaving it as a tax will refocus the right’s efforts on repealing and replacing it. House and Senate candidate now have a prominent new campaign issue, one that won a Republican Senate seat in Massachusetts for Scott Brown. It is now much more likely that Republican keep the House, win the Senate, and Mitt Romney is inaugurated in January. Any base apathy about Mitt Romney at the top of the tickets seems to have now been cured. Romney raised $5 million in the 24 hours after the ruling. Interestingly, Roberts also went out of his way at least twice to mention that similar mandates imposed by individual states are more easily permitted because they do not face the same constitutional constraints. I read that as a nod to Romney's Massachusetts healthcare plan in distinguishing it from Obamacare.

Additionally, by not accepting the commerce clause argument or the necessary and proper clause argument (which I have not discussed, but please read about in the opinion), Roberts has removed two huge weapons out of the progressive arsenal. These two constitutional clauses have long served as ways for progressives to sugarcoat ever-expanding federal government power. Roberts essentially calls out this tactic and forces progressives to be honest about what is foundational to their agenda—raising taxes. 

Lastly, I think his handling of this situation reveals something about Roberts’ political philosophy. He would rather these sorts of things be handled legislatively, by elected representatives, instead of being parsed by judges. Roberts does little to disguise his distaste for the Affordable Care Act, but simply believes at this moment in our nation it is better to be handled by the legislature.

Greg Maddux was one of my favorite pitchers of all time because what he lacked in pure athletic talent, he made up for in intelligence and precision. Once, in a meaningless regular season game late in the year, Maddux was facing Houston Astros star Jeff Bagwell. Maddux knew he would face Bagwell in a much more important spot in the playoffs in a little over a month. Maddux purposefully threw him a pitch which Bagwell launched into the stands for a home run. Sure enough, the same situation arose the next month in the playoffs, and Maddux got Bagwell out each time because Bagwell kept looking for the pitch he had hit over the fence a month earlier. Chief Justice Roberts is pulling the equivalent of that here. He eschewed a short term win for a more satisfying and meaningful long-term victory.

Bravo, Mr. Chief Justice. Those applauding you on the left do not realize they are being sandbagged, and those on the right decrying you will soon appreciate your wisdom and foresight.  

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