I have been a fan of Carson Holloway, but his attack on the critics of Chief Justice Roberts’s Obamacare opinion is not an advertisement for him.
Let’s start with the language. In the course of deploring many of the criticisms of Roberts as exaggerated and hyperbolic—at no point does Holloway allow that there have been reasonable and intelligent criticisms as well—Holloway speaks of his targets’ “Orwellian political tactics,” indulgence in “two minutes’ hate,” “rage,” “rabid” behavior, and “tantrum.” Holloway should consider the possibility that it is he, and not those with whom he is disagreeing, who has let his emotions get the better of his judgment.
His argument does not begin to justify his dismissive characterizations. “The chief justice, this argument [of the critics] runs, ‘rewrote the law’ in order to make it a tax so that he could uphold it under the taxing power. This argument is less powerful than is believed by those repeating it. . . . [I]t is hard to see how the law itself was rewritten when it will operate the same in practice no matter what he said about it.” As I’ve written before, this sort of argument just dismisses the question of what normative force the law was meant to have. It is at least arguable—and I would say a good deal more than arguable—that the law Congress passed made the purchase of insurance mandatory, and made not purchasing it illegal. That is, it created for conscientious citizens a moral obligation to purchase the insurance whether or not they felt it in their interests. The law as interpreted or rewritten does not have this feature.
It’s also worth noting that Roberts’s opinion rewrote the law’s provision on Medicaid—something none of his defenders have, to my knowledge, tried to deny, since it is undeniable. Given that he rewrote this part of the statute, it seems a little odd to insist that it is an unpardonable calumny to suggest that he did not end the revisions there. Indeed, the Medicaid portion of Roberts’s ruling makes a hash of all the encomia to him as an apostle of judicial restraint, someone who rightly bends over backward to avoid second-guessing the legislature, etc.
Holloway continues: “[I]t is not as if Roberts had no grounds whatsoever for interpreting the mandate as a tax. Admittedly, the law repeatedly refers to the mandate as a penalty. On the other hand, some of the framing of it seems reminiscent of a tax. It is collected by the IRS, paid along with one’s taxes, and the amount of it depends on one’s taxable income.” Holloway begins this passage with an error that undermines his argument. Roberts did not “interpret the mandate as a tax.” He “interpreted” it as not being a mandate. Whether the mandate is “collected” by the IRS—actually, he means the penalty for not complying with the mandate is collected by the IRS—has nothing to do with whether the law made the purchase of insurance compulsory, as most people have always believed but Roberts considers it reasonable to deny. Neither do the other features Holloway mentions bear on this question.
Holloway writes, “Those who wrote and supported the law intended the mandate as a tax, but for purely political reasons—to duck the charge that they had voted to increase taxes—they wanted to frame it as a regulation of commerce.” He adduces no evidence for this assertion, and it seems to me quite dubious: Legislators may indeed have wanted to soft-pedal the extent to which the mandate resembled a tax, but they also (again, at least arguably, and I think more than arguably) wanted to make the purchase of insurance mandatory.
Holloway then suggests that conservatives are also wrong to say that rejecting the tax argument would require the rejection of the mandate. He says that there is a good argument that the mandate is nonetheless defensible under the necessary and proper clause—and he makes this comment quite as though nobody else had suggested this idea, or thought through any flaws with it.
But then, actually paying attention to the best arguments of the conservative critics of the chief justice’s opinion is not on Holloway’s agenda. There are many things that can reasonably be said in defense of Roberts. I myself still prefer his jurisprudence as a whole to that of Justice Kennedy, notwithstanding my views on this case, because I think that the latter justice is more likely to read the Constitution wrongly (in this case, I think, the chief justice’s principal error was misconstruing a statute). I still think Roberts was wrong in this case, though, and my mind has not been changed by Holloway’s ranting about ranting.