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A square peg is a square peg is a square peg.

Law school teaches a few basic legal axioms that are predicates of our legal system and which all lawyers refer back to during their career – contracts require consideration in some form or another, hearsay is only so when used for the truth of the matter asserted, writings are to be interpreted according to their plain meaning and parol evidence is only admissible to clarify an ambiguity, which is to be construed against the drafter.

In the most simplistic of analysis, these last two axioms were lost in Chief Justice Roberts’ ACA opinion.  The ACA says ‘penalty,’ not once or twice but seventeen or eighteen separate times – it was written that way by design.  There was no ambiguity in the ACA, drafted by the very government now celebrating Chief Justice Roberts’ rewriting of the statute.

Any number of times, Chief Justice Roberts has written and/or sided with a majority opinion, wherein the majority urges the statutory language must be strictly construed according to its plain meaning (by example, the just issued opinion granting an individual the right to challenge under the APA action to take land into trust for a local Michigan tribe).  Of course, to do the contrary is to abrogate Congressional intent – to do the contrary, we have been told, is judicial activism.  Conservatives, like me, find solace in such clear principles of statutory construction and, until the last week or so, I thought Chief Justice Roberts did, as well.

Yet, the ‘contrary’ is exactly what Chief Justice Roberts did in this instance on the most important case addressing federal intervention in the private lives of each and every American in the last 80 years, if not ever.  Statutes fail, not infrequently, by reason of inseverable, unconstitutional provisions and Congress reacts to re-write the statute in conformity with constitutional precepts and, then, seeks passage of the same in an open, free democratic way.  That is the political reality which Chief Justice Roberts should have adhered to and supported, but one which his opinion obviates in striking fashion.

In the name of not saving the people from their political choices – a strange argument in itself, given that ‘the people’ were informed that this wasn’t a tax, but a penalty – Chief Justice Roberts, instead, chose to save Congress from its own ineptitude, deception and drafting and adoption of unconstitutional legislation which sought to eviscerate the core of individual liberty.  A dangerous precedent has been set by this decision – a precedent which has less to do with the reach of Congressional authority under the rubric of taxation and more to do with judicial experimentation beyond the bounds of Marbury v Madison.  This concerning precedent will permit the Supreme Court and all federal courts the latitude to soothsay congressional intent beyond the black and white of clear, unambiguous legislation.  The rules of appellate statutory construction have now been forever changed.  As I often say to clients who wish to revisit a resolved issue in the midst of litigation, that ‘horse has left the barn.’

The sad irony is that commentators have suggested that Chief Justice Roberts’ opinion was shaped by his desire to project the Court as being above the political fray — i.e. to preserve the legacy of the Court.  If true, the result of his contorted opinion, however, is to only create a legacy of the Court that, rather than adhere to principles of statutory construction which have guided our legal system and appellate advocacy for more than 210 years, it was more important to protect Congress from itself; and, incredibly, all in the name of not protecting the people from themselves.  This is a new Court legacy which turns the primacy of the individual and individual liberty on its head.

Soothsaying congressional intent on the ACA where it was unnecessary and ill-advised is judicial activism at its worst and conservatives have no reason to rejoice.  And, for generations to come the American people will have plenty of reason to question Justice Roberts’ legacy as Chief Justice.

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