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http://robertreich.org/
Roberts’ Switch
Thursday, June 28, 2012
Today a majority
of the Court upheld the constitutionality of the Affordable Care Act,
otherwise known as Obamacare in recognition of its importance as a key
initiative of the Obama administration. The big surprise, for many, was
the vote by the Chief Justice of the Court, John Roberts, to join with
the Court’s four liberals.
Roberts’ decision is not without precedent.
Seventy-five years ago, another Justice Roberts – no relation to the
current Chief Justice – made a similar switch. Justice Owen Roberts had
voted with the Court’s conservative majority in a host of 5-4 decisions
invalidating New Deal legislation, but in March of 1937 he suddenly
switched sides and began joining with the Court’s four liberals. In
popular lore, Roberts’ switch saved the Court – not only from Franklin
D. Roosevelt’s threat to pack it with justices more amenable to the New
Deal but, more importantly, from the public’s increasing perception of
the Court as a partisan, political branch of government.
Chief Justice John Roberts isn’t related to
his namesake but the current Roberts’ move today marks a close parallel.
By joining with the Court’s four liberals who have been in the minority
in many important cases – including the 2010 decision, Citizen’s United
vs. Federal Election Commission, which struck down constraints on
corporate political spending as being in violation of the Constitution’s
First Amendment guaranteeing freedom of speech – the current Justice
Roberts may have, like his earlier namesake, saved the Court from a
growing reputation for political partisanship.
As Alexander Hamilton pointed out when the
Constitution was being written, the Supreme Court is the “least
dangerous branch” of government because it has neither the purse (it
can’t enforce its rulings by threatening to withhold public money) nor
the sword (it has no police or military to back up its decisions). It
has only the trust and confidence of average citizens. If it is viewed
as politically partisan, that trust is in jeopardy. As Chief Justice,
Roberts has a particular responsibility to maintain and enhance that
trust.
Nothing else explains John Roberts’ switch –
certainly not the convoluted constitutional logic he used to arrive at
his decision. On the most critical issue in the case – whether the
so-called “individual mandate” requiring almost all Americans to
purchase health insurance was a constitutionally-permissible extension
of federal power under the Commerce Clause of the Constitution – Roberts
agreed with his conservative brethren that it was not.
Roberts nonetheless upheld the law because,
he reasoned, the penalty to be collected by the government for
non-compliance with the law is the equivalent of a tax – and the federal
government has the power to tax. By this bizarre logic, the federal
government can pass all sorts of unconstitutional laws – requiring
people to sell themselves into slavery, for example – as long as the
penalty for failing to do so is considered to be a tax.
Regardless of the fragility of Roberts’
logic, the Court’s majority has given a huge victory to the Obama
administration and, arguably, the American people. The Affordable Care
Act is still flawed – it doesn’t do nearly enough to control increases
in healthcare costs that already constitute 18 percent of America’s
Gross Domestic Product, and will soar even further as the baby boomers
age – but it is a milestone. And like many other pieces of important
legislation before it – Social Security, Medicare, Civil Rights and
Voting Rights – it will be improved upon. Every Democratic president
since Franklin D. Roosevelt has sought universal health care, to no
avail.
But over the next four months the Act will be
a political football. Mitt Romney, the Republican presidential
candidate, has vowed to repeal the law as soon as he is elected (an odd
promise in that no president can change or repeal a law without a
majority of the House of Representatives and sixty Senators). Romney
reiterated that vow this morning, after the Supreme Court announced its
decision. His campaign, and so-called independent groups that have been
collecting tens of millions of dollars from Romney supporters (and Obama
haters), have already launched advertising campaigns condemning the
Act.
Unfortunately for President Obama – and for
Chief Justice Roberts, to the extent his aim in joining with the Court’s
four liberals was to reduce the public appearance of the Court’s
political partisanship – the four conservatives on the Court, all
appointed by Republican presidents, were fiercely united in their view
that the entire Act is unconstitutional. Their view will surely become
part of the Romney campaign.
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