POLITICS

Why Roberts deserves conservatives’ scorn

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Politics,Beltway Confidential,Philip Klein

In the immediate aftermath of the health care ruling, Chief Justice John Roberts’ decision to side with the Supreme Court’s liberal bloc to uphold President Obama’s national health care law came under a furious assault from the right. That was followed by a swarm of counter-reaction among conservatives defending his decision as a master stroke in the long run. After having taken time to read through the decision and the various defenses, I still come back to the conclusion that the initial reaction was the right one. Put another way, Roberts deserves the scorn of conservatives.

Just to get a sense of some of the defenses of Roberts, I’d point you to our own Mark Tapscott, as well as George Will and Adam White. On the liberal side, read Ezra Klein’s argument that Roberts is a “political genius” for trading the short-term issue of the health care law for longer-term victories.

To be clear, there are two ways for conservatives to view this decision. One is by considering the policy outcome and the other is considering the legal outcome.

From a small government policy perspective, the decision is unabashedly bad news. Some have argued that Republicans can now run on the mandate as a tax. Sure, they can. But it’s hard to get too excited about that knowing that four dissenting justices – including Anthony Kennedy – were prepared to strike down the entire health care law. As far as policy outcomes are concerned, I would have much rather seen Roberts wipe the whole law off the books than let us be stuck with it, clinging to the supposed consolation prize that Republicans can have a partisan talking point. Repeal remains an option, but an uphill climb – and having the stamp of approval of the Court will only make the process more difficult, by beginning to cement in the public consciousness the inevitability of Obamacare.

On the Medicaid issue, the Court recognized the ability of states to opt out of the Medicaid expansion without putting existing Medicaid funds at risk. But in practice, most – possibly all states, eventually – are likely to go along with it because it will be difficult to resist the lure of federal funds. Also, as the dissenting opinion notes, another issue is that residents of all states will have to pay federal taxes that will be used to subsidize the Medicaid expansion, regardless of whether their states elect to participate. So there will be a strong incentive to go along with it. For an alternative theory about how the Medicaid decision could increase the deficit, check out Avik Roy. To be sure, the exact policy outcomes of the Medicaid decision are the source of much uncertainty. But even the best case scenario for advocates of limited government is undeniably worse than the other option that was open to Roberts: striking down the entire health care law.

To be clear, just because striking down the whole law would be the preferred policy outcome for conservatives, it doesn’t mean, by itself, that the case was wrongly decided. Roberts can’t strike down laws just because conservatives think they’re bad. He can only strike down ones that aren’t consistent with the Constitution. This brings us to the second part, which deals with the legal implications.

George Washington University law professor Orin Kerr, who has long been a skeptic from the right of the constitutional case against Obamacare, argues that the Roberts’ decision is “quite conservative.” He makes the case that on key issues – the Commerce Clause, the Necessary and Proper Clause and the coercion of states into Medicaid – Roberts accepted the conservative position on limiting Congressional power. Though Roberts did uphold it on taxing power grounds, Kerr writes, “The ultimate question on the taxing power was whether to read the a particular law formally or functionally: Do you look at whether the law says that it is tax, or do you look at whether it acts like a tax? There are pros and cons to each approach. But there’s nothing jurisprudentially liberal about taking the functional approach; it’s just the alternative way to assess the scope of the tax power.”

At the risk of becoming a poster child for Kerr’s category of conservatives who declare the mandate unconstitutional “whether or not they know anything about constitutional law,” I’ll explain my concerns with the taxing power argument.

In the health care law, the penalty was intentionally not described as a tax, did not appear in the revenue section of the statute and was not meant to raise revenue, but to enforce the mandate. Roberts had to effectively rewrite the law from the bench to make it a tax.

Moving beyond that, if the underlying mandate is otherwise unconstitutional, as Roberts concluded, how does adding a penalty make it okay? Under this precedent, Congress could theoretically mandate anything it wants and slap on a nominal penalty and defend it in Court as a tax after the fact. To use a popular example, the government can now still force you to purchase broccoli, as long as the punishment is a fine rather than imprisonment.

Under Roberts’ argument, the mandate is kosher because it’s merely a tax on not purchasing insurance. His defenders on the right argue that it isn’t really setting a new precedent – Congress always had this power. As Roberts himself put it, “Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry… Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking.”

The problem with Roberts’ example of cigarette taxes is that it’s a case in which government is imposing a tax to discourage an affirmative act. But the mandate is an example of slapping on a penalty as a means of compelling action. Roberts recognized the distinction between activity and inactivity when it came to the Commerce Clause argument, but he didn’t grapple with the difference between so-called “sin” taxes and a mandate penalty. To use smoking as an example, there’s a difference between taxing cigarettes and assessing a penalty on smokers who don’t purchase Nicorette gum (or some other product meant to help people quit smoking).

Conservatives were encouraged by Roberts’ Commerce Clause ruling. While I agree that was a victory for limited government principles, conservatives would have gotten that anyway had Roberts joined with Justices Scalia, Alito, Kennedy and Thomas. So on a net basis, by upholding the law, Roberts was able get liberal buy in on striking down the Medicaid provision, and that’s no doubt significant. But I don’t see it as worth the price of admission.

In a broader sense, this case was testing the assumption that the Supreme Court would never invalidate a major act of Congress. Even if Roberts had only agreed to strike down the mandate, it would have sent a powerful message that the Supreme Court is willing to protect the Constitution from further encroachments. But I fear when all is said and done, after this case, future lawmakers will still feel confident in the assumption that they can pass whatever they want, and if the legislation is major enough, the Supreme Court will find some sort of excuse to uphold it.

I hope I’m wrong, and for a bit of a more optimistic take on the implications of the decision, I spoke to Georgetown Law Professor Randy Barnett this morning, often described as the architect of the legal challenges to Obamacare. I’ll post his comments shortly.

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