Phil-osophically Speaking: July 5, 2012


Supreme Confusion

Where does one start in commenting upon one of the most surprising and beguiling decisions in the history of judicial annals? This past week, the United States Supreme Court ruled that it is constitutional to impose a mandate to carry health insurance. According to Justice John Roberts, who surprisingly wrote the majority decision upholding the law, its constitutionality is not found under the Commerce Clause, which was the principal legal basis the Obama administration was invoking to justify the health care overhaul, but under Congress’ constitutional power to tax.

The subtleties and nuances of the court’s decision are intriguing. In Article 1, Section 8, Clause 3, which enumerates the powers delegated to the Congress, it states that Congress is empowered to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Sure enough, disputes rose over the range of powers the Commerce Clause bestowed on Congress, especially since it was so often paired with the “Necessary and Proper Clause,” a combination that enormously increased congressional control over the life of the economy.

Initially, under the Articles of Confederation, the federal government had no commerce power and this proved an impediment in crystallizing nationhood. Our own Constitution remedied this with the Commerce Clause, which precluded discriminatory state legislation directed at other states, usually for the purpose of economic advantage. The Commerce Clause was the needle and thread that knitted together a loose confederation of states into a national economy. The question ever since has been how much control the federal government should have over individual states and how much control the states can reserve for themselves. Power divided has been a benchmark of liberty, a hallmark of our Federalist system of government. As Americans, we are citizens of both the nation at large and our respective states, each of which has its own government. The Commerce Clause became one measure of the relative power between the states and the federal government.

Starting with the Interstate Commerce Act of 1887 and the Sterman Anti-Trust Act of 1890, both enacted in response to rapid industrial development and an increasingly interdependent national economy, congressional power was expanded over commerce that, in recent years, under the Rehnquist court, had been slightly retarded. But with President Obama and the Democratic Congress’s initiative to require citizens to purchase health insurance from the private market, the question of congressional boundaries has been resurrected.

Pursuant to the passing of the “Affordable Care Act,” twenty-six attorneys   general filed a lawsuit claiming Congress was overstepping its bounds because the failure to purchase insurance cannot be considered an economic activity (which is essentially the definition of commerce) but rather, in the words of Judge Henry Hudson, who in Virginia v. Sebelius ruled that not buying insurance was actually an “economic inactivity” and therefore an unwarranted intrusion by the federal government not only into state jurisdictions but in the private lives of its citizens. Partisan bickering and polarizing debates over the law’s constitutionality ensured a hearing before the Supreme Court.

Chief Justice Roberts agreed that upholding the insurance mandate under the Commerce Clause, “would open a new and potentially vast domain to congressional authority and that the power to regulate commerce must presuppose the existence of commercial activity to be regulated.” Equally important was Roberts’ siding with the majority in ruling that the federal government cannot use its spending power to coerce the states into adopting federal programs and requirements. No surprise there either. But what Roberts parried with his right hand he astoundingly gave back with his left. In a shadowy act of verbal prestidigitation, or what Thomas Jefferson called twistifications, Roberts stunned legal scholars and court observers by finding the insurance mandate constitutional under Congress’s power to tax.

Like Napoleon, who became so focused on avoiding the Spanish ulcer that he forgot about the Russian coronary, conservatives became so centered on the Commerce Clause that they neglected Congress’s power under the Constitution to “lay and collect taxes” for “the general welfare of the United States.” It certainly was a clever twist — indeed journalist Charles Krauthammer called Roberts’ opinion “one of the great constitutional finesses of all time.” In one sense, I, too, can appreciate the supple, intellectually ambidextrous workings of Roberts’ thinking process as well as the implicit tactical presumption that this unexpected, non-partisan decision provides the court with an unassailable subterfuge for conservative adjudications in the future. Buttressing his reasoning even further, Roberts’ is also served by the historical practice of government using its power to tax as a form of incentive such as the deductibility of the mortgage tax, which was instituted because home ownership was deemed a good thing (though it recently turned into a nightmare for millions) so, conversely, if not buying health insurance is deemed a bad thing then it’s incumbent upon government to fight this disinclination with a prohibitive tax.

Under these auspices, one can ascertain Roberts’ constitutional justification for the law even while detecting Roberts’ subtle disapprobation (at least I detect it) of the wisdom of the “Individual Mandate.” Despite his own inclinations to the contrary, Roberts is saying the court’s responsibility is limited to assessing the statute’s constitutionality, not its economic soundness. Elections have consequences and it’s not the Supreme Court’s responsibility to protect American citizens from the policies and legislation that flow from their electoral choices, providing it’s constitutional.

But before we start showering Chief Justice Roberts with plaudits for his principled stand and judicial restraint, one must reconcile how the expansion of the federal government’s taxing power is different in kind than an expansion of the Commerce Clause. It was, after all, Chief Justice John Marshall, Roberts’ avowed hero, who warned,  “The power to tax is the power to destroy.” Moreover, and even more bitingly germane, the law was not passed as a tax. The court has conceded that the statute reads more as a command to buy insurance than it being a tax. Which is why judges Kennedy, Scalia, Thomas and Alito wrote in dissent, “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”  Meaning, it doesn’t read the way Roberts reads it.

It’s why I believe Roberts was fundamentally wrong in his legal reasoning, for the Supreme Court’s duty is to adjudicate on the constitutionality of the statute before them and not one of their own making. As for the economic consequences of the law, providing it’s not revised or padded down, it’s downright hellacious. With the repeal of the Bush taxes and the coming Obama tax hikes, we might as well move to Greece. I exaggerate, but as G. K. Chesterton said, “Sometimes you have to exaggerate to tell the truth.” With this new law in place, things are bound to get worse and if you need a sign of the times how about this: The federal government has just hired 16,500 new IRS agents tasked with evaluating whether your insurance policy merits a fine. That’s the kind of hospitality we can expect from the Feds in this “Brave New World” of our own making.        

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