Why Roberts saved Obamacare

Why Roberts saved Obamacare

His ruling considered the legacy of the Supreme Court

Charles Krauthammer
New York Daily News
Thursday, June 28, 2012

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time.

He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?

“The Framers ... gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states.

The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a President.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the President.

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the decades-old expansion of congressional power under the Commerce Clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new President and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new President and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

I'm seriously in shock that he voted the way he did. This is another black mark on the Bush administration (for nominating Roberts).

Elect a new prez and a new congress? Easy, huh? NO.

First, the biggest road block would be the Senate. We can have a total GOP gov't (prez, House and Senate). The president (maybe Romney) wold sign the legislation to overturn the law. The House will vote straight up and down along party lines and pass the overturning of the law. The senate, on the other hand, would HAVE TO have at least 61 Repubs voting lock-step to overturn the law. And that would hinge on the Democrats showing up for quorum. Remember Wisconsin (2011) or Texas (2001). Dems left the state to stop bills from even being voted on. The DC Dems would scrape that low, guaranteed.

I don't understand why people are against this healthcare issue

1:"unconstitutional"
While it's fine for people to say they should not be forced to buy something, they should not then say they like the provisions of it.
It's that logic that confounds the average person. I mean if you like the provisions of it, you would want to get it without being "forced" into it, right?

2: "cost"
Some haters of this law/bill say that it costs way too much money.
This is the wealthiest, most technologically advanced country on earth AND we're in the 21st century. The days curing people by hitting them with a stick went out with the cavemen. Of course it is gonna cost money.
And don't come top me with this "price" baloney. If we can afford to pay some bonehead entertainer to stand on tape, we can also afford to pay for healthcare. If given the choice I would take the pricy healthcare over overpriced loser.
Also, if you are eating $8.00 stadium hot dogs don't complain about price for your health coverage.

3: "sensible"
If you don't want health coverage then you don't get health coverage.
The protesters that complain about this need to get hit by a bus and when they can't pay for the surgery and need to have OTHERS pay for it, maybe they'll get it.

TheNextPrez2012 wrote:I don't understand why people are against this healthcare issue

1:"unconstitutional"
While it's fine for people to say they should not be forced to buy something, they should not then say they like the provisions of it.
It's that logic that confounds the average person. I mean if you like the provisions of it, you would want to get it without being "forced" into it, right?

I don't know anyone who is against this bill/law that said they like the provisions. That's nothing but media-speak.

TheNextPrez2012 wrote:2: "cost"
Some haters of this law/bill say that it costs way too much money.
This is the wealthiest, most technologically advanced country on earth AND we're in the 21st century. The days curing people by hitting them with a stick went out with the cavemen. Of course it is gonna cost money.
And don't come top me with this "price" baloney. If we can afford to pay some bonehead entertainer to stand on tape, we can also afford to pay for healthcare. If given the choice I would take the pricy healthcare over overpriced loser.
Also, if you are eating $8.00 stadium hot dogs don't complain about price for your health coverage.

Who's going to pay for the HC? You? What if you decide you don't want it? Ready to pay around $650 a year?

People like you enjoy spending other people's money. It's all good as long as you don't have to pay for it.

How about when your employer decides to 86 company provided HC? They'll have to pay a fine. But guess what? That fine will be less than paying for your HC thru the company coffers.

If I decide to eat $8 hot dogs and then have a heart attack, that's my business, not yours nor the federal gov't.

TheNextPrez2012 wrote:3: "sensible"
If you don't want health coverage then you don't get health coverage.
The protesters that complain about this need to get hit by a bus and when they can't pay for the surgery and need to have OTHERS pay for it, maybe they'll get it.

Bullshit. If you don't want this HC, you will pay the gov't about $650 a year. If it's a family, it's about $2,500 a year. Nice.

Btw, NP, if you think this tax won't affect you, you're mistaken. I'll be happy to hear your whining in about 4 or 5 years.

Survey Findings: Physician Attitudes on the Affordable Care Act

Executive Summary

The mean average grade the ACA received by survey respondents
was a "D".

A majority of physicians surveyed said the ACA will not improve healthcare's quality, rising costs or patients' control over their medical care. They also said the ACA will worsen the amount of control physicians have over their practice decisions.

Other Findings

• 70 percent said ACA would not stem rising healthcare costs
  
• 67 percent said ACA would not improve the doctor-patient relationship
  
• 66 percent said ACA would give physicians less control over their practice decisions
  
• 61 percent said ACA would not improve the quality of healthcare
  
• 55 percent said Congress should scrap ACA and start over
  
• 54 percent said ACA would increase patients' access to care
  
• 49 percent said ACA would give patients less control over their healthcare
  
• 35 percent said it did nothing to reform healthcare.
  
• 31 percent said ACA didn't go far enough and a single-payer system is needed
  
• 22 percent said ACA went too far and impedes a physician's ability to practice medicine
  
• 12 percent said ACA brought the reform needed in healthcare
  

Background & Methodology

In Autumn 2009, Jackson Healthcare surveyed physician attitudes about the proposed health reform legislation under consideration at that time. In January 2011, on the eve of the first anniversary of the law, Jackson surveyed physicians again. The purpose of this survey was to measure physician attitudes at the two-year
mark.

This survey was conducted online between May 25 and June 4, 2012. Invitations for the survey were emailed to physicians who have been placed by Jackson Healthcare staffing companies and those who have not.

A total of 2,694 physicians completed the survey and spanned all 50 states and medical/surgical specialties. Respondents were self-selected. The error range for this survey was /- 1.9 percent at a 95 percent confidence level.

http://jacksonhealthcare.com/media-room/surveys/physician-attitudes-on-the-affordable-care-act-2012.aspx