Politics & Policy

The Umpire Blinks

John Roberts called a balk, but gave the pitcher a do-over.

Chief Justice John Roberts famously defined himself as an umpire in his confirmation hearings. But an umpire is willing to make the toughest calls.

In his Obamacare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law (as an activist, a partisan, and an altogether rotten human being), Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over. The ref called a foul, but didn’t interrupt the play.

As a result, there’s Obamacare as passed by Congress. Then there’s Obamacare as passed by the Supreme Court.

Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.

#ad#In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.

Roberts vindicated the core of the constitutional argument against the individual mandate that had been sneered at by the legal establishment and pronounced preposterous by the likes of Nancy Pelosi. The mandate is unprecedented in that it doesn’t regulate existing activity; it compels people to undertake an activity — namely, buying insurance — that Congress then regulates under the Interstate Commerce Clause. This stretches the Commerce Clause beyond the breaking point.

The chief even reverted to the widely derided broccoli argument: If the federal government can make you buy insurance, it can make you eat vegetables. The government’s logic, Roberts wrote, “authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”

Then, Roberts went out in search of some way, any way, to find the mandate constitutional. He alighted on the argument that the mandate isn’t a mandate at all, but a tax. Never mind that the tax argument was an afterthought in the administration’s defense of the law. Never mind that administration officials, from the president on down, vociferously denied that it was a tax during the debate over the bill. Never mind that the law itself never defines it as a tax and includes the mandate (and its penalty) in a different title of the act from the revenue provisions.

“To say that the Individual Mandate merely imposes a tax is not to interpret the statute, but to re-write it,” the four conservative dissenters from the Roberts opinion write. The chief was willing to take out his rewrite pen to avoid striking down the mandate. He did the same to keep from throwing out the Medicaid expansion. He considers it, too, an offense against the constitutional order. Wherever exactly the line for impermissible coercion of the states falls, he noted, “this statute is surely beyond it.”

Roberts gets points for cleverness. He set clear constitutional boundaries without striking down the law. He largely sided with the critics of Obamacare without enraging its supporters. He came up with the only 5–4 decision that wouldn’t subject his court to the calumny of the Obama administration and law-school deans everywhere. All the op-eds that had been drafted trashing the legitimacy of the court have been filed away for now. 

As chief justice, Roberts has competing priorities, of course. But it’s not his job to redraft laws under the guise of judicial restraint. On Obamacare, the umpire struck out.

— Rich Lowry is the editor of National Review. He can be reached via e-mail: lowry.comments@nationalreview.com. © 2012 King Features Syndicate

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