As we all know, last Thursday the Supreme Court released its decision on the so-called Affordable Care Act, widely regarded as the signature legislation of the Obama Administration and dubbed Obamacare for short. The decision was a surprise and occasioned some particularly egregious misreporting by the liberal media, which tends to ignore or distort legal niceties on its best days. Still, once press and pundits realized that Congress’ massive intrusion into healthcare had been upheld due to the vote cast by Chief Justice Roberts, euphoria set in for the most part. Liberal pundits and academics lavished praise on Roberts for his statesman-like decision and judicial restraint.
In contrast, the reaction by Conservatives was mixed. Some thought Roberts’ decision a masterstroke along the lines of Chief Justice Marshall’s decision in Marbury v. Madison, where Marsahall and a Federalist bench eschewed a result that would be popular with party while making plain that their political opponents, Jeffersonian Republicans, had acted lawlessly when they denied Marbury his commission. Others made the case that Roberts’ decision was fundamentally flawed, with some calling his reasoning tortured and others suggesting that he had caved-in to the political pressure the White House had brought to bear by warning that an adverse decision would discredit the court. I write to share a few thoughts about how we might look at the decision as an organization that is committed to a government of laws, not of men, in a constitutional republic.
The decision is complicated but presents three basic constitutional issues, and Roberts’ decision on each provides information relevant to evaluating the charges leveled against him. The first issue was whether Congress could require individuals to purchase health insurance pursuant to its power to “regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.” Here the Court (Roberts and the dissenters, Scalia, Kennedy, Thomas, and Alito), held that Congress could not regulate the decision of persons not to purchase insurance because the decision not to purchase a commodity (insurance) was not commercial or economic activity. That is a surprisingly complicated question given the existing law—and the Court largely avoided those complications by essentially saying that the decision not to buy could not be deemed commercial activity because if it were, then the commerce power would be able to reach just about any decision that had any conceivable impact on commerce, a result that would undermine the whole notion of a federal government of limited and enumerated powers that is the heart of the federal structure assumed and in some measure effectuated by the federal constitution. We learn in logic that you cannot define something by saying what it is not. Still, the reasoning has some force in this context. The point is that Roberts participated in one of the few cases that have limited the commerce power since the turn of the twentieth century.
The second issue is closely related, i.e., whether Congress could regulate a noncommercial/noneconomic activity (the decision not to purchase health insurance), under its power to “make all laws which shall be necessary and proper for carrying into execution the forgoing powers….” From the earliest days of this country, that clause has been interpreted broadly. For example, most recently Justice Scalia held that Congress could regulate the production of marijuana in California for the purpose of giving it to persons using it to sedate themselves from the pain arising from disease. He reasoned that because Congress could regulate commerce in marijuana, the regulation of noncommercial production of marijuana could be regulated as a necessary and proper means of insuring the integrity of the federal regulatory scheme. The basic idea is that Congress could proscribe this activity in order to insure that there was no commerce in the drug. But here again Roberts and the dissenters provided another meaningful limit on the necessary and proper power. Basically the Court reasoned that Congress could not compel activity that so as to make the activity fit within the commerce power because this would also make the necessary and proper clause the means by which all activity could be brought within the scope of a federal power, a result that would likewise the eviscerate the whole notion of limited powers at the heart of our federal system.
Because Roberts agreed with the dissenters on these points he had to reach the last argument advanced by the Department of Justice in favor of the mandate, i.e., that the tax liability arising from failure to comply with the federal command to purchase insurance was constitutional because it was an exercise of the federal government’s power to “collect taxes…for the…general welfare of the United States….” As we know, Obama and other politicians denied the penalty collected by the IRS (depending upon the income earned and the decision to purchase insurance) was a tax. But it is axiomatic that the Court engages in its own analysis when it characterizes Congressional action for the purpose of applying constitutional provisions, and also, that the separation of powers built into the Constitution requires the Court to indulge any reasonable characterization of a statute so as to avoid voiding it as unconstitutional. Applying these basic principles, Roberts held that the mandate was in fact a tax because it was a measure designed to raise revenue that did not rise to the level of penalty as the Court has defined that term in order to prevent the taxing power from becoming a limitless powers. In reaching this decision Roberts relied upon a decision which resolved a longstanding debate about the scope of the taxing power in favor of a broad few of the clause.
This is the holding that has attracted the criticism of many conservatives. But what has been absent from that criticism is a meaningful engagement with the principles Roberts employed to support the conclusion he reached in this case. I realize the decision is long and the issues complicated. Indeed, I freely confess that I will need more time to come to grips with it—as will many others who have freely voiced their criticism if the truth be told. But that is what prompted me to share these points. The criticism I have seen so far seems to be based on the idea that the result is undesirable, a view I agree with. At the same time, it is axiomatic for conservatives who believe in a government of laws, not men, that judicial decisions should be driven by principled reasoning, not desire results.
The term “judicial activism” is often used to criticize decisions that are found objectionable. Abuse of the term has largely obscured the evil it seeks to identify—a decision that is properly characterized as result-oriented because inconsistent with the discernible purpose of the constitution’s provisions and outside the range of reasonable doctrinal development. It has been said both liberal and conservative justices have been guilty of the kind of abuse of judicial power that deserves the label, and sadly, there is some truth to that charge.
Maybe the reason that Roberts’ decision disconcerts so many is that this is what judicial restraint actually looks like. In any event, I write to suggest that we who collaborate under the banner of CatholicVote.org should reserve our judgment until we see better reasons for the criticism than have been set forth thus far.
Patrick T. Gillen is an Assistant Professor of Law at Ave Maria School of Law.