CJ Roberts Might Have Saved the Court, But Was That His Job?

In our discussion in the comments at the main page, Tom Van Dyke and I discussed whether Chief Justice Roberts’ decision in NFIB v. Sebelius, aka, the Obamacare case, demonstrated the essence of statesmanship (and possibly a shrewd power play) or a defeat for the independent judiciary.  I’m still of two minds about it.  I do want to agree with Tom and think the best of our Chief Justice.  Alternatively, I can’t shake the suspicion that it is profoundly wrong if the Court’s decision was a kind of quid pro quo for Bush v. Gore and Citizens United, as Lawrence Tribe suggested.  The Court may not properly look to polls showing sagging popular support for its decisions, or concern itself with the caterwauling on the courthouse steps.  The Court is the sole branch of government that is institutionally designed to be not politically responsive, for very important reasons.

The notion that Robert’s “saved” the Court or its “legitimacy” raises many troubling questions.  Can we square the competing concepts of an independent judiciary with one that is responsive to politics? If a decision is political (as Robert’s 5-4 decision here arguably is), then can it properly be construed as binding precedent on the Court were it to reassert its independence?  The Court, it might be said, would serve two masters:  the “We the People” who give authority to the Constitution, on the one hand, and the transient present popular will for whose benefit, in part, the Chief Justice arguably cast his vote, on the other hand.

If the Court begins cowing to popular sentiment, we will have lost the independence of our judiciary.  At that point, there would be no point in talking about constitutional conventions. Every session of Congress would be a constitutional convention unto itself.

In short, if Chief Justice Roberts’ move here saved the Court, what kind of a Court did he save?  I worry it may not be the same Court we had before June 28, but instead one more responsive to politics, less independent, and thus less able to defend the Constitution.  The Court would have been preserved at the Constitution’s expense.  Yet it was the Chief Justice’s oath to preserve and protect the Constitution, not the Court.  The concern, then, is that the Chief Justice simply got his priorities mixed up.

But again, I remain ambivalent.

John Eastman’s offering on the decision better describes what’s at stake in this regard.  He also lays bare the many problems with the “tax” justification presented in the Chief Justice’s opinion.  To constitutional conservatives, it’s well worth reading before considering whether Roberts’ gave us any real “silver lining” in his decision. (By the way, you should consider signing up for Prof. Eastman’s email list; he provides very insightful legal and constitutional commentary once or twice a month.  Sign up here.)

Hard to know where to begin.  As I said in my preliminary assessment yesterday, the opinion by Chief Justice Roberts upholding the Affordable Care Act (aka Obamacare) as a valid exercise of Congress’s taxing power is a sell-out of constitutional principle of the first magnitude.  (And yes, for those that caught that typo in the original post, I do know the difference between principal and principle– but it appears that the Chief, in his role as “principal” of the judicial system, may have forgotten his primary role is to uphold constitutional “principle”!).

It is also fundamentally wrong on constitutional law; the doctrine of separation of powers; the meaning of a direct tax; and the idea of limited government and enumerated powers.

It also appears that the Chief may have switched his vote after the original conference and circulation of opinions.  Rather than repeat all the evidence for that claim that others have noted, I’ll just point you to the more insightful of the commentaries on this point.  Short version:  the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito refers to Justice Ginsburg’s concurring opinion as a “dissent,” is written as though it were the majority opinion, and says that if the individual mandate were really a tax, they’d have to address the close constitutional question of whether it was a direct tax–something they don’t address even though, as the case was ultimately decided, the issue was squarely presented.

See in particular Professor Paul Campos’ commentary on this at Salon, Ed Whelan’s commentary over at National Review, and Lawrence Solum’s commentary at Legal Theory Blog.

If that is indeed what happened, and the Chief’s motive was to prevent the Court from being “politicized” and therefore having its legitimacy undermined (in the eyes of elite opinion, that is), he has done just the opposite, both for the Court and his own here-to-for stellar reputation.  Indeed, if that is what happened, the Chief should resign; he would not be fit to continue in office.  As the great Chief Justice, John Marshall, recognized more than two centuries ago in Marbury v. Madison, it is “the very essence of judicial duty,” the reason a “judge swear[s an oath] to discharge his duties agreeably to the constitution,” that the judge must find “that a law repugnant to the constitution is void.”  Then again, in McCulloch v. Maryland, he added:  “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.”

We have a judiciary independent of the political process precisely so that can withstand such political attacks and uphold the Constitution.  (And oddly, it should be even easier to do so when the political opinion of the majority of the American people is so strongly opposed to the law).

But let us for the time being give the Chief the benefit of the doubt.  What, then, of his constitutional arguments.

The law is unconstitutional as an exercise of Congress’s power to regulate commerce among the states, he tells us (and on this point he is joined by Justices Scalia, Kennedy, Thomas and Alito), because Congress cannot force people into commerce in order to gain authority to regulate.

These were the grounds on which Congress passed this bill, deliberately choosing not to raise taxes as a way to fund the massive expansion in health care entitlements.  The Chief’s Commerce Clause holding should therefore have been the end of the matter.

Instead, the Chief manipulated the law to treat it as a tax, and then held that the taxing power is broad enough to uphold this law.

There are several problems with that.  First, the President and leaders in Congress argued vociferously that the individual mandate was not a tax.  Second, Congress did not impose a tax; It imposed a penalty for failure to comply with a regulatory mandate.  Third, if it is a tax, the Anti-Injunction Act deprives the Court to even here the case.  Fourth, the so-called “tax” did not originate in the House of Representatives, as Article I, Section 7 of the Constitution requires.  It originated in the Senate.  (Yes, I know.  Technically the Senate stripped down a House bill that was languishing there, and then used that bill number as the vehicle for the Obamacare legislation.  To say that the bill therefore “originated” in the House is a fraud).  Fifth, the power to tax is to provide for the “general welfare,” not effectuate massive transfers of wealth from one group of citizens to another.  And sixth, if it were a “tax,” it would be a direct tax, but one that is not apportioned according to population, as required by Article I, Section 9, clause 4 of the Constitution.

Why does this matter?  Aren’t these all a bunch of constitutional niceties that really don’t mean much?  Actually, no, if the idea of limited government envisioned by our nation’s founders is to continue to have any force.

Even assuming Congress has the power to accomplish such broad and otherwise unconstitutional regulatory purposes by way of the taxing authority — a dubious proposition — the constitutional process for raising taxes is critically important.  In insures that our lawmakers are accountable to the people for their actions (heck, the unaccountability of the King and Parliament for imposing taxes on the colonists was the principal reason we had a revolution!).  The requirement that tax measures originate in the House was designed because the House is most directly accountability to the people.  At the time of the founding, members of the Senate were not even elected directly by the people; that came about only after the 17th Amendment was adopted in 1913.  Even today, every single member of the House has to face the voters every two years (rather than every six, as in the Senate), a pretty serious political check on raising taxes.

And the prohibition on un-apportioned direct taxes was designed to prevent the use of the taxing power to redistribute wealth.  If Congress can impose a direct tax on some while exempting others, there would be a serious risk of majority tyranny — that is, the prospect that 51% of the population could simply tax the other 49%.  That can’t happen with a direct tax that can only be imposed if apportioned based on population.  (Note:  This is also the problem with a steeply progressive income tax, which allows for the same kind of majority tyranny mischief, but that’s a discussion for another day).  But a direct tax with exemptions?  Look out.

How does Chief Justice Roberts address this problem?  Well, he ducks it.  In a great bit of circular reasoning, he contends that the tax is not a direct tax because it doesn’t apply to everyone.  But that says nothing about whether it is a direct tax or not; it merely admits that if this is a direct tax, it is unconstitutional.  So why is it a direct tax, in my view?  Well, for starters, because it is not any of the other kinds of taxes authorized by the Constitution.  It is not an excise (such as a tax on liquor or cigarettes); it is not an impost or duty (such as tariffs on imported goods); it is not an income tax, because it is not triggered by your income (although the size of the penalty can be effected by the amount of your income).  It is a tax imposed for not doing something.  That is the very definition of a direct tax.  A good analysis of this point was published by my friend, Rob Natelson, over at Independence Institute.  His analysis is spot on.  Maybe if the Chief had had the benefit of briefing on this subject, he might not have made such a sophomoric error.  But methinks he knew exactly how disingenuous this argument was, and he made it anyway.

What of the second part of the opinion, holding (by a vote of 7-2) that the threatened loss of a State’s entire Medicaid funding if it declined to accept the massive expansion in Medicaid mandated by the Obamacare law was unconstitutional.  Many conservative commentators over the past 24 hours, desperate to find a silver lining somewhere in the decision, have focused on this.  True, this is the first time that the Court has ever held a federal spending grant to states to be so large as to be unconstitutionally coercive.  The Chief called this, quite correctly, “a gun to the head” of the States, “economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”  But that aspect of the Chief’s holding is immediately rendered largely meaningless.  If a State refuses to expand its Medicaid program, as Congress desired, it cannot lose existing Medicaid funding.  But its citizens will still be taxed to pay for the Medicaid expansion everywhere else.  Few, if any, of the States will be able to reject entry into the new program as a result.  The choice will be:  Pay for it, and get some money back in return to cover some of the costs of expansion; or Pay for it, and send all your money to other states to pay for the costs of their expansion.  That’s every bit as much a “gun to the head” (albeit a six-shooter rather than a bazooka), yet the Chief does not even discuss that coercive aspect of the Medicaid expansion, much less find it to be unconstitutional.

Justices Scalia, Kennedy, Thomas, and Alito authored a joint dissent.  That itself is rare; normally dissents are authored by a single justice and then joined by others.  As noted above, the dissent reads as though it was written as the majority opinion.  We will learn whether that is true or not in the fullness of time, but likely not until one of the current justices retires, passes on, leaves their papers to a library archives, and then we get to the day those papers are unsealed and made available for public inspection.  Then, we will see the initial votes of the justices that were cast on the last Friday in March, two days after the conclusion of oral argument in this case.

The dissent is a powerful defense of our Constitution’s system of checks and balances, of federalism, and of the notion that our federal government is one of limited, enumerated powers, not one with unlimited power to compel action by its citizens as it sees fit.  My one point of disagreement is that the joint dissent concedes too quickly that Obamacare would be valid if Congress had actually chosen to enact it as a tax.  In my view, the Tax and Spend power also has limits.  The signature accomplishment of the Rehnquist Court was to restore the foundational idea that the Commerce power had limits, but it has been clear for some that that accomplishment is meaningless if Congress can simply shift to the Tax and Spend power to accomplish the same unconstitutional ends.

This, then, is the greatest disappointment of yesterday’s ruling.  When given the opportunity to restore limits on the Tax and Spend Power, comparable to the limits his predecessor was able to restore on the Commerce Power, Chief Justice John Roberts appears to have blinked in the face of political pressure.  He apparently found the exercise of the “painful duty” to tell Congress it had exceeded its authority too painful to actually exercise.  Chief Justice Rehnquist had the constitutional fortitude to do his duty.  A Chief Justice Mike Luttig would undoubtedly have exercised that same constitutional fortitude had he been appointed to the position instead.  Those who pushed hard for his nomination, greatly concerned that John Roberts had not been tested in the fire of a landmark decision, have been vindicated.  Small consolation, though, given the damage that has been done to the constitutional principle of limited government.

Is there a silver lining?  Yes.  But it is not simply that this issue now becomes a rallying cry for those who would seek, following the next election, to repeal Obamacare.  No; it must be more than that.  It must be a repudiation so strong that the Court’s decision itself is repudiated.  In 1798, Congress passed the Alien & Sedition Acts, making it a crime to criticize the government.  There was a huge outcry against the Acts, but the lower courts upheld them as constitutional.  Thomas Jefferson waged his campaign for President in the Election of 1800 largely on repudiating those Acts.  He was successful, but the Acts were not just repealed (or more accurately, left to expire).  They were repudiated.  Jefferson pardoned everyone of the conscientious objectors who had been convicted under the Acts, and the judgement of history has been that the Court decisions holding the Acts constitutional were profoundly wrong.  That is the exercise of true power by a truly sovereign people.  That is the metal of which free men and women must be made if they are to remain free.  That is now our charge, and our moment to take our place in the pantheon of American patriots, defenders of freedom, is now.  Will we prove ourselves worthy of the task?

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. I am no legal scholar, and am not in a position to pronounce with authority on how the decision was rendered. And I know that you and I share few political viewpoints, not least of which is that I am still tepidly supportive of (or, perhaps more accurately, at least optimistic about) the ACA.

    But I agree with everything you wrote here. I would want the Justices to decide cases based upon their best understanding of the law, not because they want to improve their G ratings.

    • I try to keep myself and others surprised at what political viewpoints we might agree on. If I can ever finish my (increasingly belated) contribution to the inequality symposium, I make some significant concessions to the left. And along the lines of those concessions, I’m also reconsidering whether government properly has a larger role in healthcare than I’ve previously argued.

      Apropos of nothing, the reason my blogging has been so slow is because my wife and I are attached-parenting our daughter, who will turn a year old next month. I plan to write a post on that, which will draw from Rose’s very interesting post on your blog. Reason I thought of mentioning that, I guess, is because you always offer good comments here, but it probably seems I never frequent your blog. Just wanted to say, I do, but for the same reasons, I’m seldom am able to comment much. Which is amusing in the context of Rose’s attached parenting post: I imagine attached parents (like me) would have valuable contributions to make, but we just don’t have any time to make them!

      Cheers, Russell.

      • Thanks for that, Tim. I’m chuffed to know you read our stuff. And I’d be delighted (as I’m sure Rose would be) to read your take on/experience with attachment parenting. I know I don’t have the wherewithal to do it for my own son, but I take a very expansive view on parenting as a pediatrician. With the obvious exception for paradigms that are frankly pathological (eg. a benighted view about whether girls should be allowed to do the same things as boys, etc), I try to support parents in whatever choice they’ve made in taking care of their kids. Different strokes for different folks, and all that.

        And I generally assume people don’t comment on my blog because they’re out living Full and Productive Lives instead.

  2. Oh, no! Roberts didn’t decide the case towards a limited federal government.

    Shall we go over what would have happened did he do so?
    Invalidating most federal laws since 1932 would have been far more entertaining than this.

    Still, everybody lost their bets. Lulz shall ensue.

  3. I worry it may not be the same Court we had before June 28, but instead one more responsive to politics

    One that’s more political than the group that decided Bush v. Gore? Unlikely.

    • Well, Tim, I was gratified that I got to the “why” of Roberts’ decision pretty quickly through a sleepy fog Friday morning. The man is too good to have ruled willy-nilly or to have joined the lefties’ carte blanche for government power via the Commerce Clause.

      And yes. Bush v. gore did have a lot to do with it. The left is still crabbing about it a dozen years later although there was zero chance Al Gore was going to become president–the SC had ruled 7-2 or so that the FLA Supreme Court was screwing up, and the electoral vote would have been decided by the FLA legislature, which was controlled by the GOP.

      (Neither did Gore ever win one of the recounts staged by the mainstream [read: left] newspapers.)

      But the SC did step in early in the process with a not-great ruling, and the left has been squawking ever since.

      Then Citizens United, and President Obama’s disgraceful public call-out of the SC at his State of the Union speech. when the president makes a mockery of respect for our institutions, the rabble are going to go off the scale.

      So, for the good of the country, Roberts did a little penance on behalf of the Court, and made what was unconstitutional at least borderline constitutional. [I don’t think he fractured the constitutional truth as much as stretched it.]

      Krauthammer hits most of the points I’ve hit in comments sections over the past 24 hours


      which is also gratifying. He’s the best, along with Walter Russell Mead, who is also in the same zone.


      The Obamacare bill was passed through hook and by crook, albeit technically legal, stretching the legality of the process as far as it could be stretched. Its flaws were largely on technical grounds, which Roberts ignored—calling it a tax because it was one.

      The 4 righties on the court properly found against it, but again on largely technical grounds. No injustice was done.

      But Obamacare could have been written and passed in a form that would have passed constitutional muster. Roberts ruled as if it had, and in the end, has put its fate back in the hands of the Congress and of the people, where it belongs.

      • I’m all for all of that, just still queasy over the tax rationale. Why not put it over for further argument since neither side touched it during oral argument? Why not spend more time on the analysis that would carry the day? As it stands, THAT causes the decision to suffer in tens of legitimacy, but only in the eyes of the right. But the right hasn’t been as vociferous as the left in recent history wrt judicial partisanship, e.g., with bush v. gore and citizens united. So no big loss of cred there for Roberts.

        Why would Roberts offer such a lame justification, other than because he purposefully made it thin and thus subject to future challenge? But that is more craven and partisan as just joining his colleagues and striking the whole thing down.

        • The 2012 elections may [will!] moot the question, Roberts and the Court smell of roses…

      • Geez, you steal one election via a judicial coup and you never hear the end of it.

        • I don’t believe you believe that, because you couldn’t begin to defend it as fact. Gore loses under every scenario. It’s just talking shit.

          And that’s the tragedy in all this. You don’t believe a goddam word you’re saying. If you did, you would try to prove yr point.

          But that doesn’t stop the poisoning of the polity. And that’s what Chief Justice Roberts was trying to do something about.

          A fool’s errand. But he tried.

          • Hand-wave all you like. The possible outcomes had the votes had been counted does not alter the fact that they were not. The Reds might have won the Series fair and square in 1919. Doesn’t make a bit of difference.

            And your telepathy is. as usual, off.

          • The point is that it was a state matter. Whether the Florida Supreme Court was messing things up by the lights of the Robed Oracles is beside the point. As you pointed out, the Florida Legislature could have simply declared that the electors would go to Bush. Of course then they would have had to withstand the howls of protest that would have ensued, but it would have at least been consistent with the U.S. Constitution. It’s not the job of the Supremes to save their Republican allies in the Florida Legislature from political backlash of that sort.

            The final tell on this is the bit about it being a “one-off” thing that shouldn’t be construed as precedent. Translation: Don’t expect us to do something like this again if it’s a Democrat leading in a disputed squeaker of an election.

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