The Political Consultant Chief Justice
By John Colyandro & Brent Connett
Much has been made of Chief Justice John Roberts' opinion in NFIB v Sebelius in that he may have perpetrated political Jiu-Jitsu by upholding the Patient Protection and Affordable Care Act while forcing the President to defend a tax the Administration insists it never created. Surely this is clever, but only if all the political machinations Justice Roberts seemingly imagines actually come to pass.
Specifically, much repeated since the controversial decision was announced is the Chief Justice’s admonition that it rests with the electorate to make a final judgment about the health care act. “It is not our job to protect the people from the consequences of their political choices,” the Chief Justice wrote. This political counsel, worthy of a high school civics teacher, is merely an escape hatch.
The theory goes like this. Labeling the penalty a tax would propel the American people to toss the bums out at the next opportunity (November 2012), allowing a new President and Congress to fix the constitutional crisis that is “Obamacare”. Obamacare will not be repealed, however, without a new President and Congress, and neither is pre-ordained.
Furthermore, the American people made their political decisions in two successive election cycles based on an entirely different representation. President Obama explicitly campaigned against a middle class tax hike and an individual mandate, and it wasn’t until July 2009 that President Obama came out for the mandate. Then throughout 2009 and 2010, Congress proposed, debated and passed an act that relied on penalties - not direct taxation -- to enforce the mandate. A writer for The Atlantic got it exactly right: “The American people voted for a candidate who strongly opposed an individual mandate, but got a president who strongly favored one.”
One must take President Obama and former Speaker Nancy Pelosi at face value when they insist that they intended to impose a penalty, not a tax despite the Roberts Rule. The important issue remains that had Congress passed an Act that explicitly created a new tax -- or had the President in 2008 campaigned for a tax hike and mandate -- maybe the American people would have made different political decisions in 2008 and 2010. After all, at least three Democratic Senators – Sens. Reid, Murray and Bennett -- would have been considerably more vulnerable had they voted to create a tax on inactivity to be enforced by the IRS. Perhaps they might have even lost their re-election bids in 2010 in the Tea Party wave.
Either not being aware of this or not being a competent political sage, Chief Justice Roberts rebukes the American people for making a choice on a question that was never once posed to them in the context of a general election. Justice Scalia’s remonstration to the Court in Planned Parenthood v Casey is operative:
"Instead of engaging in the hopeless task of predicting public perception — a job not for lawyers but for political campaign managers — the Justices should do what is legally right.”
In the pursuit of a political opt-out Chief Justice Roberts ignored legislative, judicial, and common sense distinctions between taxes and penalties, effectively "re-writing" the law before the Court. It's an appalling abuse of power, and one no conservative would countenance from a liberal. As James Taranto wrote in the Wall Street Journal, “Chief Justice Roberts has managed to bring about a broad and almost universal consensus. Pretty much everyone agrees his decision was crassly political.”
The Chief Justice may have been clever in the hyperbaric chamber that is the Supreme Court, but the Chief Justice drove the country into a cul-de-sac. While reigning-in potential abuse of the Commerce Clause, he vastly loosened the constrictions on Congress’ taxing authority while leaving the ultimate question of repeal to the vagaries of a political campaign. The federal government is inherently more powerful today than it was a week ago thanks to the political machinations of the Chief Justice who put responsibility for repeal of PPACA in hands of the Romney get-out-the-vote operation.
John Colyandro is Executive Director of the Texas Conservative Coalition Research Institute; Brent Connett is Communications Director. The opinion expressed here is the authors’ and not that of the organization; titles are included for identification purposes only.