Sunday, July 1, 2012

Do we still have a government of laws, and not of men?

On Thursday the supreme court ruled to uphold the Patient Protection and Affordable Care Act, aka Obamacare, on a 5-4 vote, with Chief Justice John Roberts siding with the 4 liberal justices.

The good news is that the mandate was ruled unconstitutional under both the commerce clause and the necessary and proper clause. From Roberts' majority opinion:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3. The power to regulate commerce presupposes the existence of commercial activity to be regulated......The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.....Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.... The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

So that is good news. Hopefully this part of the ruling will keep congress, especially democrats, from trying to mandate any other purchases.

And as for the necessary and proper clause:

Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.
The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

Both of these rulings prevented a huge new shift in power from the people and states to the federal government, and for that I am grateful. You can find Roberts' whole opinion here if you care to read it.


Unfortunately, despite the mandate being unconstitutional under both the commerce clause and the necessary and proper clause, Roberts' upheld the mandate as a tax and ultimately upheld the entire law. Some might say argue that congress cannot tax us for doing nothing and Roberts' addresses this in his opinion:

First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (`Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes’).”

While I always enjoy a good Ben Franklin quote, I am a little confused about how it applies here. Regardless, there is a history of capitations (or poll or head taxes) being used in the United States and you can find some more info about that here.

This piece of the opinion is basically saying that even if the government can't directly force you to buy something, they can tax you if you don't. That doesn't sound too good. I guess liberty lovers can take comfort in the fact that it is probably a lot harder to pass taxes than mandates, so hopefully there won't be too many of these taxes. But that is really not that comforting is it?

Ultimately, I am a disappointed in the ruling. I think that health care in this country definitely has to change, but I just do not think that Obamacare is the best way, or even a good way, of changing it.

More than that though, I think that Chief Justice Roberts dropped the ball on his duty. Many pundits have talked about how Roberts feels it is his duty to maintain the image of the court. By upholding Obama care, he has shown judicial restraint and has put the ball in the court of elected officials and the people. Some conservatives have even talked about this being a strategic move by Roberts, as summed up by Jonah Goldberg:

"Some of Roberts’s defenders claim he’s outmaneuvered everyone. By upholding Obamacare, he’s made future conservative decisions unassailable. He’s poisoned the well of the Commerce Clause for liberals. He’s removed the court from being an election-year issue. He’s gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively, violating a host of promises and assurances. And, again, he’s saved the legitimacy of the court."

But Mr. Goldberg is not buying it, and I am not sure I do either. Mr. Goldberg concludes his column with this:

"That’s all very interesting, but it leaves aside the real issue: None of those concerns are what was asked of the court."

I agree with that. We do not ask the court to think strategically. We do not ask them to worry about their image. We want them to uphold the constitution. And sometimes that means overturning laws, no matter how many people want the law to hold. Just because 90% of the country wants a law to hold does not mean that court should look the other way and try to come up with some interpretation that would allow it to stay in place. Sometimes the minority needs to be protected from the elected majority. Supreme Court Justice John Marshall said it well in Marbury v. Madison:

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

Part of me feels that with Roberts legal maneuvering we have become a government of men.

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