Justice Roberts Re-Framed ObamaCare to make it Constitutional

I've
tried -- I really have tried -- to accept the kindest reading of Chief
Justice Roberts' decision and opinion on ObamaCare. But, so far at
least, I just can't bring myself to see the positive here, let alone
evidence that Roberts has outsmarted anyone. Except perhaps himself, and those that in some weird way look at his decision as a triumph .

I
am speaking, of course, of the general opinion, gaining a lot of
traction in conservative circles, that by rejecting the case for
ObamaCare's unconstitutionality as such, and wresting the majority
opinion from the hands of the leftist justices he joined, Roberts was
able to score a subtle victory for conservative principles. If this
interpretation, in its various forms, were being pitched only by the
usual Beltway pundit suspects (Will, Krauthammer, et al), I wouldn't be
making the effort to understand and accept it.

However,
the theory is being espoused -- and has been consistently espoused from
the outset -- by some non-establishment Republicans as well, including a
few whose minds and motives I respect.

I
therefore feel obliged to address their case directly, rather than
ignore them, as I would if they were merely the usual suspects I
mentioned above.

First,
as for the idea that Roberts has made a brilliant strategic
calculation, throwing the individual mandate back in Congress' lap as a
tax, rather than a penalty, I have to join those who have asked whether
it falls within the constitutional authority of a Supreme Court justice
to engage in political gamesmanship of this sort, however cleverly
conceived or well-intentioned.

Some
argue that Roberts was making a conservative case for delimiting the
scope of judicial powers, by saying, "It is not our job to protect the
people from the consequences of their political choices." But in order
to uphold the law, Roberts had to re-frame it in a way that directly
contradicted specific claims made by the law-makers and the President.

He
was not merely "exposing them." He was giving them a different -- and
in his view more acceptable -- version of their law than they had
actually offered and defended. In other words, Roberts is implying that
the law itself, as written, was unconstitutional -- a judgment that is
not only within the legitimate scope of a justice, but is precisely a
prime function of SCOTUS -- and so he has rewritten it for them in order
to make it constitutional. It needs to be explained how this
action -- literally legislating from the bench -- falls under the rubric
of "conservative judging."

Then
there is the question of how calling the erstwhile penalty a "tax" -- a
tax on inaction -- does not open the judicial precedent floodgates to
the imposition of taxes on anything, or any non-thing, that any Congress
might wish to concoct.

I
do not pretend to be sufficiently expert on Supreme Court matters to be
able to answer the above questions definitively. For now, I will leave
the task of providing knock-down arguments on those matters to those
more expert than I.

But
I wish to conclude with a practical political consideration that,
assuming Roberts really was as clever as his defenders say, suggests why
such a "throw it back on Congress" gambit is bound to fail.

The
optimists' best case for the practical value of Roberts' move -- again,
assuming for the sake of argument that he was not just abandoning
principle -- is that by re-framing ObamaCare as, in effect, a huge new
tax, he has indirectly handed a winning campaign issue to the
Republicans. After all, so the argument goes, Americans hate new taxes,
especially big ones aimed at the middle class.

But
what if this case proves an exception to that general distaste for new
taxes? A law that was unpopular to begin with, and had the added
disgrace of having been ruled unconstitutional, would be a strong
election issue, would it not? By rendering the law officially
constitutional, Roberts has given it new legitimacy.

And
remember that this is not newly proposed legislation. It is a law that
has been on the books for two years, and is already well along the way
to being embedded in the practical lives of Americans. The SCOTUS
judgment that it is constitutional, while stoking the passions of the
Tea Party minority, will likely have the opposite effect on those middle
of the road voters who are less politically engaged.

So
what of this huge new tax? If this were 1776, it is clear what people
would think, and how they would react. Today, however, when American
taxes are already high, and when the Democrats will just continue to
hammer away at the class envy/class guilt theme on this issue, might not
a whole lot of "middle class Americans" simply swallow a tax increase
defended in the name of "providing care for those who can't afford
coverage," and "refusing to allow 'free-riders' to use 'the system'
without contributing to it"?

The
ultimate political effect of Roberts' decision, I fear, will be to
provide superfluous new "motivation" to those who were already loaded
for bear, while providing the embalming muddle of politics-as-usual to
those whose votes are most desperately needed, and whose pilot lights
might have been ignited by the specter of an unconstitutional assault on
their liberty.

Roberts -- whose job it was to pass this very judgment -- has said in no uncertain terms that ObamaCare is neither unconstitutional nor an assault on individual liberty. It is just another piece of legislation which voters may choose to support or not.

Time
will tell how this judgment will affect voters who are not already
committed to voting against Obama and the Democrats. I suspect that
anyone who was not already engaged in this fight is unlikely to become
animated over what is now, officially, just another D vs. R legislative
dust-up.

Republicans
have lost the heart of the issue -- that ObamaCare is not just another
piece of legislation, but rather entails a radical and illegitimate
transformation of the American conception of the relationship between
citizen and state. Any rhetoric to this effect can now be pooh-poohed
by Democrats, and chalked up to election year hyperbole by a disengaged
electorate for whom tax increases are a nuisance, but not decisive, and
who -- like too many Republican strategists -- have bought into the
liberal paradigm that says the central issue on healthcare is "access,"
rather than liberty.

I
truly hope my reading of the situation is wrong, and that Thomas
Lifson, Clarice Feldman, and other good people who support Roberts are
right. But wishes do not give birth to horses, and at the moment I'm
seeing only gray where others are finding silver.