[Lively discussion about the SCOTUS decision is HERE.]
There is alot of speculation about what Chief Justice Roberts did and why in his majority opinion effectively upholding the Patient Protection and Affordable Care Act by coming at it as a tax rather than tackling it under the Commerce Clause. I am sure we are now all referring to Obamacare also as ObamaTAX.
And the HHS attack on religious freedom still stands.
In National Federation of Independent Business v. Sebelius Roberts wrote (biretta tip to The Motley Monk for the quote):
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
Charles Krauthammer opines in the Washington Post about the what and the why. Without pyschic powers or Robert’s coming clean, this might be as close as we get to answers, and he speaks his piece in about 750 words (amazing). Mind you, I am not by this saying one way or another that Roberts what right to do what he did. Some who are both reading- and analysis-challenged will claim that. For me, Krauthammer’s explanation is the most plausible I have found. Here it is with some (regretted) cuts:
Why Roberts Did It
He’s the custodian of the Court’s reputation. [There it is.]
By Charles Krauthammer
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 [NB] 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. [I think what we are seeing here is an application of an interpretive principle which I often use in looking at things that happen in and to the Church: ad intra and ad extra.]
[…] [I hate cutting any of this, it is so well-written.]
… 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.
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 inexorable 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, regulatory, and 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 [ObamaTax] 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.
It seems plausible.
What I worry about, however, is that there is now a dangerous, eroding constitutional precedent.
Please vote and give an explanation in the combox. And please stick to this topic.