You're a Good Man, Justice Roberts, and a Conservative

       Like many liberals, I have gained a new respect for Chief Justice John Roberts this week. In both Monday’s decision on the Arizona immigration law, and today’s Affordable Care Act decision, Robert’s broke with the Conservative wing of the court and sided with the liberals. Conservatives are not amused. Rush Limbaugh  and Mark Levin, of course, are going craz(ier). Half of the right-wing bloggers in the country want to impeach their former hero for disloyalty. And Glenn Beck is driving all over the country looking for an edge that he hasn’t already gone over. In general, white men in America haven’t been this upset since M*A*S*H* got cancelled.
       Strangely enough, my newfound respect for Justice Roberts comes from the long-suppressed conservative side of my split political personality. Unlike most of my liberal friends, I was genuinely ambivalent about the Constitutionality of the individual mandate. I supported (and continued to support) the idea of universal health care, but I was not convinced that the commerce clause could legitimately be extended to requiring a commercial transaction. And while I thought that the mandate was a very tax-like thing, I did not think that the government should be able to get away with calling it a tax only when it served their purposes. Like most commentators, I was fairly sure that the mandate was going to be struck down, and I was resolved to see the entire Affordable Care Act go along with it.
       And then John Roberts happened.
       I am still not sure that I agree with the core of Roberts’ decision today. The court basically ruled that if it waddles and quacks it’s a duck, and if it redistributes income to purchase services it’s a tax. I can see the point, but, on the other hand, Congress could have made this process a lot simpler if they had admitted that it was a tax to begin with and structured the legislation accordingly. However, once Roberts came to the conclusion that the mandate was essentially a tax, he could not have ruled other than he did without becoming an in-your-face judicial activist—as the Congressional power to tax is virtually unlimited by the Constitution.
       In his Federalist papers on the subject—especially #34-#36—Alexander Hamilton makes two things very clear: 1) that we cannot safely limit the power to collect taxes because we cannot accurately predict our need for revenue; and 2) that the political difficulties of raising taxes are sufficient to prevent excessive taxation, even with unlimited Constitutional authority. This second point has generally held true. People don’t like taxes, and when members of Congress forget this, they usually end up losing their jobs.
       It is precisely because tax increases are so politically difficult that the Framers felt that they could make them, Constitutionally speaking, slam dunks. This was actually pretty sneaky on their part. By granting Congress complete authority over taxation and spending, they made these issues completely political--questions to be confronted by the people who depend on the electorate for their jobs. Had they created a list of Constitutional and Unconstitutional avenues of taxation, they would have given a great deal of interpretive power to judges with lifetime appointments. As the Constitution stands, however, the courts are simply not part of the revenue-enhancing process.
        Roberts did a good job of bracketing all of the non-Constitutional questions involved with the Affordable Care Act. He did not ask “Is it a good idea?” or “Is it an effective policy?” He did not try to determine whether or not health care was a right. And while the four liberal Justices wanted to tie the mandate to the Commerce Clause, Roberts absoltuely refused to go there. He confined himself the very narrow question, “is the individual mandate a tax?”--a question with clear Constitutional implications. My favorite passage from the decision goes like this.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

          In his landmark decision today, Chief Justice Roberts exercised formidable judicial restraint. He presented the Court's role with humility, and he framed the question at issue as narrowly as it could possibly be framed. He declined to legislate from the bench or to overturn the decisions of elected officials without a clear Constitutional mandate to do so. He tied his decision entirely to an interpretation of the Constitution that he had the authority to make. And (breaking with the liberal justices) he did nothing to expand the power of the federal government.
          Until about a week ago, we had a word for judges who thought this way. We called them “conservatives.”