Did Roberts just give Obama the bird? – UPDATED

Just a thought that occurred to me after I’d done some reading around the internets, particularly this, this and this.

Is it possible that Roberts, concerned by threats from the left that they would de-legitimize the court if it struck down Obamacare, reasoned as he did to both give the GOP a workable means of repealing the thing through legislation while also utterly defanging those threats? After all, if you look at the people screaming about the court yesterday, they’re all purring like kittens on twitter, and calling SCOTUS “humble” and “judicious.” There’s no more talk of “partisan, activist judges” today.

Are the Dems and the press going to wake up in the middle of the night, think about that and cringe?

Hey, anything is possible at this point.

People don’t seem to realize that Roberts’ decision has essentially, in an election year, handed this issue back to the voters, where it belongs, while also giving the legislature some room to maneuver. Obamacare was rammed through against the wishes of the majority. Now, the majority can unram it or solidify it, as it chooses, but at least what happens now will happen with the consent of the governed. Bottom line: System worked, Roberts worked it.

I get the sense that some are unable to see any victory that does not come with a stark pronouncement made at the bang of a gavel. But we ought not to consider court rulings as an optimal form of representation.

I’m not saying Roberts has applied a political calculus to his opinion. Perhaps he has just answered those threats in a creative way. Giving him the bird, so to speak.

Indeed. And as everyone knows,

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UPDATE I:
Slate’s Tom Scocca: Obama Wins the Battle, Roberts Wins the War

Yes, Roberts voted to uphold the individual mandate, joining the court’s liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause.

Another way of looking at it, Is Roberts Playing Bridge?:

Bridge is a complex game with a significant trust component.

I believe Roberts is playing Bridge here.

I’m guessing (yeah, I said I’m trying not to speculate) that his reading of the liberal justices was such that if he sided with the manifest majority, and struck down only the funding vehicle, the law would survive and be shored up through other, more devious measures.

By correctly classifying the funding vehicle as a tax, he has played a card that exposes the liberal reality and invites a response from Congress as well as the electorate.

By acknowledging that the *electorate* is responsible for its political choices and therefore its politicians and therefore, ultimately, its laws, and by making it clear that bad law and bad policy may not, in fact, violate the Constitution, since the Constitution was not written with the explicit injunction that “legislators may not write stupid laws,” he plays the card that clarifies the path to eliminating not only the heinous Health Care Sabotage machine, but also the fools and crooks who gave it to us.

Roberts is looking across the table at us now.

Frank Weathers has Many Catholic reactions and also links to this.

UPDATE II:
Ezra Klein: The Political Genius of John Roberts

By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

Da Tech Guy has a big roundup that Comes full circle and declares: “it’s up to the voters”.

The court gives the issue to the voters. The system worked.

Or, as Krauthammer says, Roberts has said to the poeple, “this is your job, not mine.”

UPDATE III: I am feeling stubbornly optimistic

About Elizabeth Scalia
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  • Paul A’Barge

    Think about this:
    1. Bush the elder gave us Souter.
    2. Bush the junior gave us Roberts.

    We need to clean up our own house first. And that means “No More Bushes”.

    [That's silly. That's reacting, not thinking. And on this blog, we spell the president's names correctly, fyi, so I fixed it for you. -admin]

  • http://Www.markinspokane.blogspot.com Mark in Spokane

    The one flaw in this theory: Roberts hasn’t limited federal power. He has just cast the deciding vote Ina case that will solidify government control of the health care system. In doing so he has embraced the idea that the government’s power under the Tax Clause is limitless. His pretty distinctions regarding the Commerce Clause will be ignored by liberal judges going forth. If he was trying to be strategic, he miscalculated in a huge way.

    [I'm reading many lawyers on both left and right sites, who disagree -admin]

  • http://jscafenette.com Manny

    That may have been the outcome, but I do not think that was the intent of Robert’s decision. One has to believe that this is his interpretation. He’s absolutely wrong or there is no liberty in this country. Whatever the outcome of the election, this has now set a terrible precedent.

  • http://twitter.com/fusionaddict Kenny Hitt

    Also, Roberts’ ruling that the mandate is a tax makes the entire act a budgetary issue, which means the GOP would not need a supermajority to kill it in the senate, as budgetary bills cannot be filibustered. Can you say “nuclear option”?

  • David K. Monroe

    OK, I just read the Slate article and I think I understand the point. If true (and if I understand it correctly), it’s a very impressive move on Robert’s part. However, I imagine many people don’t understand the impact that this decision has for the Commerce Clause. It would be good if someone could explain that more fully.

  • http://teresainfortworth.wordpress.com/ Teresa in Fort Worth, TX

    Thanks for peeling me off of the ceiling – I was starting to think along these lines not long after the decision, but thought I must be reading more into it just to make myself feel better.

    If this was his intent, then it is a truly briliant move.

    And now the Democrat pundits are on record as heaping praise on Roberts for being such wise Chief Justice….

    Karma.
    It’s what’s for dinner…..

  • Susan D.

    Hmm. So, if this now makes the ACA a budgetary issue, would that make the involunatary “abortion surchage” and the “free” provision of abortificient drugs illegal? Currently no federal tax dollars can be used to pay for abortion.

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  • Oregon Catholic

    There is much to dislike about Obamacare but for me the mandate wasn’t one of them. It is absolutely unfair to those of us who buy insurance to protect our assets and pay our bills to continue to allow people to go uninsured and pass the costs of their care off on us. As a nation we have to come up with a way to get all citizens into the insurance pool and equalize costs to all since we have decided that no one is going to be denied emergency or life saving care. The reality is this SCOTUS decision leaves people with a choice of how they will insure their health and the possibility of reduced costs through competition, especially if we can eliminate the interstate barriers and really open the market up. Without the mandate, we would eventually be forced into a gov. single payer system.

    And we must take control of health insurance out of the employers hands and put it into the hands of individuals. The unemployed are the group most disenfranchised and the least able to get insurance on their own. The system as it exists now is just f’ing crazy.

  • Bender

    handed this issue back to the voters, where it belongs

    So why bother having a Constitution?

    If the meaning of the Constitution and the extent of government power belongs within the realm of mere majority vote, why the hell did they bother to write and pass the Constitution???

    To be clear, the individual mandate is a matter for voters to the same extent that the contraceptive mandate is.

  • LisaB

    The SCOTUS changed the language of the law; a mandate = tax. How? My head hurts, can someone please explain to me how they were able to re-write the law when Obama said it was NOT a tax. And secondly, how can you justify via the U.S. Constitution that LIFE can be taxed?

  • kevin

    While it’s true the public always has the option of removing legislators they don’t like, the majority opinion is still embarrassingly poor and virtually incoherent. The taxing power of the federal government does not and has never been deemed to extend to all human activity or inactivity as the case may be. Roberts should be profoundly ashamed for attaching his name to it. Worse is that – - again – - the administration denied that it is a tax. That should have ended the issue for the Court. The tax issue was not even asked to be briefed. But that is the “basis” of the whole opinion. You had 4 liberals trying to help their buddy Obama out, and then something went haywire with Roberts. He either got intimidated or thought he could avoid the issue by throwing up his hands and saying “hey, it’s a tax, we think, go do something about it.” It’s just utterly bizarre.

  • Brian English

    The portion of Roberts’ opinion where he magically transformed the mandate into a tax was weak, but his rejection of unlimited federal power under the Commerce Clause is extremely important. He did not just make “pretty distinctions” that liberal judges can ignore.

    People should also not underestimate the siginificance of the limitation on Medicaid expansion. Permitting states to opt out is going to create insurmountable implementation problems.

    Roberts stated at two points in his opinion that voters have the authority to fire politicians who pursue policies the voters disagree with. Nothing in his opinion today prevents the repeal of Obamacare in its entirety if the GOP wins the White House and Senate in November.

  • Elaine

    For goodness sake I would think that all the Justices would judge the law on being constitutional as it was written. It was written as commerce not taxes. Doesn’t congress have to vote on a tax increase and the President did not want a tax increase. This is awful.

  • Susan D.

    Turns out that the language for administering the individual mandate left it wide open for being interpreted as being a tax. From the syllabus of the decision:
    ”Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty”will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)”

  • Mike Mahoney

    “[I'm reading many lawyers on both left and right sites, who disagree -admin]”
    The many ones who opined as of yesterday that this ruling would strike down Obamacare? Yeah, I’m getting that, too. Not even a little bit impressed anymore. Neither am I impressed by the minimalist positive spin. At bottom what is being written is Roberts played a political card against Obama. That’s may have some color of truth. If so, it is disgusting, Orwellian and chicken.
    Roberts says congress must fix it. Congress said, the president said the penalty is not a tax. Roberts looked into his crystal ball and says, yea and verily I tell you, congress said it was a tax and that makes it OK.
    A legislative overturning will leave us with case law that allows a penalty for an act or refusal to act to be legal, as it is really a tax. The nation will forever be burdened by this new permission.

  • Joan

    Anchoress, could you please link to the site that the very first block quote comes from? I have clicked through the links and I can’t seem to find it. Thanks

  • Bender

    voters have the authority to fire politicians who pursue policies the voters disagree with

    Voters do NOT have the authority to fire judges who engage in anti-constitutional logic pretzels and thereby distort the law and the Constitution, and voters do NOT have the authority to overturn such distortions and travesty of law. The absurd unreason that is Roberts’ opinion upholding the “ObamaCare Tax” is now judicial precedent that will continue to oppress and harass for years to come (including now being a justification for imposing additional taxes on Catholic institutions who do not provide contraception coverage).

    Again those voters who have the authority to fire politicians who pursue policies the voters disagree with are the same voters who have the authority to hire politicians who impose abortion on demand and compel you to subsidize the sex lives of other people via a contraceptive mandate.

  • Elizabeth Scalia

    [it's the very first link on the post, which was my link...two posts down. ]-admin

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  • Will

    Undecided voters will determine the November election. Will this decision be a positive, negative, or a wash in the eyes of the undecided voters? What will it take (the Presidency, the House, the Senate) for the law to be repealed or retained? The economy will probably still be the major factor in the election.

    Roberts voted with his conservative peers on many part of the law. Yet, to some, he is now categorized as a socialist.

  • http://Www.markinspokane.blogspot.com Mark in Spokane

    The liberal judges will ignore Roberts’ pretty distinctions. If you head over to Yale con law professor Jack Balkin’s blog, he has already written a post outlining how this will be done once Obama gets to appoint another justice or two. It is very simple: the liberals will simply characterize Roberts’ pretty words about the Commerce Clause as dicta — not a binding part of the decision. They won’t be bound by Roberts’ opinion in this case when it comes to limiting govt. power. But watch them run with the massive expansion of the Tax Power that Roberts just gifted Obama, Pelosi and Reed. What a disaster.

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  • http://catholicsensibility.wordpress.com/ Todd Flowerday

    That so-called majority is rather tenuous. I opposed ACA, but mainly because it was a Republican plan rehatched from 1993 and 2006, Massachusetts. I don’t see any other way than single-payer. Unless the Knights of Columbus have some brilliant insurance plkan up their sleeve.

  • Chris

    It’s taken me all day to digest this, and I’ve withheld comment until I felt I could understand what just took place. And really, when you get down to it, there are the following key points:

    1. Roberts deems revenue collection a “tax”, even though legislation is carefully worded to indicate that it will be collected “in the same manner as” a tax. If something is LIKE a tax, it is self-evident that it is NOT a tax.

    2. The analytical gymnastics over the Commerce Clause is absolutely breathtaking. Oh, so we’ll get Obamacare in exchange for Roberts picking up fantastic political capital? Pardon my French, and I know we should all use polite language, but WTF?

    3. The notion that liberal activist judges are going to be laying awake at night, in sheer moral terror that they will have to follow the precedent set by this “narrowing” of the Commerce Clause is a laugh riot.

    4. The precedent that WILL be taken up, can be found in the vast power just handed to the legislative branch to collect money at will, for almost any reason whatsoever. As long as the popcorn trail leads back to “health” (you know, like when children are aborted over the “health” of the mother), Congress can mug you with impunity in broad daylight. And don’t think for one second this will be limited to the left side of the aisle. Politicians serve mammon, not their constituents, and ideology will not get in the way of the great, continuing re-distribution of wealth from the middle class to the elites.

    5. Roberts’ opinion that this is something that the voters should decide on is stupefying. As another poster pointed out, “Why have a constitution at all??” Seriously. We send in Roberts to quarterback, he goes into the shotgun formation on first down, and PUNTS. I guess it’s up to voters to fire John Roberts. Oh wait…

    ["why have a constitution at all"? Conversely, if we're going to insist that everything be settled through the scotus, why have elections? Why have a legislature? -admin]

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  • Mike

    Roberts as some sort of genius double agent. I don’t buy it.

    I think it is simple: In the moment of truth Roberts was a coward.

    He betrayed America. He betrayed Americans. He lied more than anyone else and rammed Robertscare down our throats like a vicious dictator with no concern for any other person or process. He just nailed America’s coffin shut so he could be well thought of.

    He put his own reputation and feelings ahead of the country.

    He is perfidious and hideous.

  • Andy

    My half cent – this decision is not the end of the world or the country for that matter. What Roberts said is that Congress had a right to do what it did. He even said a wiser decision could have been made. ACA is not a good law, there are components though that are needed. What it didn’t do was really address the root cause of the health care crisis – medical fees.
    This law demonstrates what is wrong with out political system – it is a cob job – put together by lobbyists from insurance companies, medical groups, politicians – in other words the folks who stand to make money from the law. It is the reliance on money or worship of money by politicians that makes laws like this possible. To take back our country from the precipice it stands on we need to remove the impact of money. I really don’t care which side of the political spectrum you come from the influence of money lead ACA, it leads to most legislation in AMerica.

  • c matt

    Just based upon the comments, I gather that most interpret Roberts’ vote as a chess move, sacrifice a lesser piece to gain some future greater advantage. Risky, given the general state of the electorate. But as Will Rogers would say, in a democracy we get the government we want, good and hard. It would be nice if one of our officials (elected or appointed) would save us from our collective selves once in a while, but they don’t owe us that.

  • c matt

    “Roberts’ opinion that this is something that the voters should decide on is stupefying. As another poster pointed out, “Why have a constitution at all??” Seriously.”

    I gather Roberts’ position is that as long as something does not violate the Constitution, we are left to our own devices. (According to his reasoning) the mandate is not Constitutional as an exercise of the Commerce Clause, but is as an exercise of the taxing authority. The fact that Congress or the Pres said it was not a tax is not determinative from a Constitutional perspective (no more than Congress/Pres calling something a “service fee” and not a criminal or civil penalty conclusively determines it is not a penalty). He may be incorrect, but it is not “punting”. It is essentially saying “you made the bed (through voting these guys in), you now get to sleep in it (or “remake” the bed by voting them out).”

  • Kristen inDallas

    Thanks for this take… it is helping me view in more charitable light the whole, “what was he thinking bit.” And you’re tight, in that if we pretend this is a tax and if we pretend it had contained a severability clause, then he’s got a pretty well-reasoned opinion.
    But… It still boils down to a giant lie about the law itself, about what it did and did not say. Yes we elect congress and they have the right to pass a tax, but if what actually happens is that an appointee of the executive branch writes a law that is an encyclopedia and gives congress no hope of a chance to read it before it gets voted on, and those congressmen are lied to about the contents of the bill and even if they had read it, the bill itself lies in language that implies it is not a tax when in fact it is…. can we really call that a “duly” approved tax?

    I’m willing to accept it if we got a recall vote in congress, saying, this law is only constitutional if we assume some things that weren’t written in it, that it is a tax only, and that it will stand even if all it’s other funding mechanisms are found unconstitutional (such as states being allowed to opt out of medicare) Would you still like to vote for it? If they can still get it through Congress with all that on the line, sure. Otherwise I think it’s fair to say the bill that was upheld is not the bill Congress passed.

  • Chris

    ["why have a constitution at all"? Conversely, if we're going to insist that everything be settled through the scotus, why have elections? Why have a legislature? -admin]

    I’m not saying everything needs to be settled in SCOTUS, just the issues they ELECT to review. And I don’t think it speaks well of the Chief Justice in a landmark case to wash his hands of it a la Pontius Pilate and leave it to the mob to decide what he has been appointed to do. He’s the constitutional expert, not the electorate. Referendums, as we’ve learned in California, are not worth the paper they’re written on.

  • Chris

    “Just based upon the comments, I gather that most interpret Roberts’ vote as a chess move, sacrifice a lesser piece to gain some future greater advantage. Risky, given the general state of the electorate. But as Will Rogers would say, in a democracy we get the government we want, good and hard. It would be nice if one of our officials (elected or appointed) would save us from our collective selves once in a while, but they don’t owe us that.”

    If SCOTUS has devolved into a political series of chess moves, it no longer functions as an impartial body, which pretty much defeats its raison d’etre. The mere thought is appalling.

  • Brian English

    “He may be incorrect, but it is not “punting”. It is essentially saying “you made the bed (through voting these guys in), you now get to sleep in it (or “remake” the bed by voting them out).”

    Exactly. There is nothing unprincipled about Roberts’ decision. It is a maxim of statutory interpretation that courts should look for a basis to avoid holding laws unconstitutional. Do I think Roberts went too far in his pursuit of this goal? Yes. Would I have ruled the same way? No. But reasonable people could disagree on that point.

    “It is very simple: the liberals will simply characterize Roberts’ pretty words about the Commerce Clause as dicta — not a binding part of the decision.”

    Prof. Balkin is wrong. Five members of the Court ruled that the mandate was unconstitutional as an exercise of congressional power under the Commerce Clause. Lower courts are bound by that and, more importantly, so is Congress.

    ” But watch them run with the massive expansion of the Tax Power that Roberts just gifted Obama, Pelosi and Reed. What a disaster.”

    I hate to have to break this to you, but they had that power before yesterday. That is why elections matter.

  • Chris

    “He may be incorrect, but it is not “punting”. It is essentially saying “you made the bed (through voting these guys in), you now get to sleep in it (or “remake” the bed by voting them out).”

    If you read the majority opinion, Roberts uses no empirical data to decide that the revenue portion is a tax. He applies the notion that, well, it’s not a lot of money, so it’s not REALLY going to discourage someone from not buying insurance, so it’s not REALLY a penalty. Really? At what level of taxation does a tax become a penalty instead? When Congress jacks up the “tax” to close the comfortable gap between the “tax” and premiums, there will be more suits arguing the opposite — that Congress cannot legislate punitive direct taxation for funding it could not procure otherwise unless it amends the Constitution (like it did with income tax). Problem is, SCOTUS doesn’t give any visibility on where that magic line gets crossed. The whole thing is a hot mess. I submit that Roberts just made a bed that SCOTUS is not going to like sleeping in either as this bizarre opinion is set upon in coming years.

  • Andy

    I have read here and other places that ACA is a complex law and hard to understand. It is complex and for the layperson including me very hard to understand. BUT that is what we pay congress critters to do – read complex laws and understand them. That si why they have large staffs, and run to think tanks.
    Disagreement with the law is fine, but the argument that it was to complex to understand just doesn’t hold water. By the way its length is due to how laws are bound – 3.5 – 4 inch margins, really increases the length.

  • Bertha

    Mr. English…great response; I completely agree.

  • JamesR

    Once all the parsing and speculating and guessing what was on Roberts’ mind and his motivations, etc., we come back down to the core bottom line issue, in my mind — appropriate to be laid out, as this is after all a Catholic blog — plainly with no pussyfooting around, about “freedome of religion” marches, “HHS” and “Sebelius” and seeking “exemptions” to mandates which can be granted or removed at will, by one person……let’s cut to the chase.

    1. Is this Act, now declared in its entirety to be Constitutional – KEEPING IN MIND that it includes ALL of the vast powers it places into the hands of the President’s appointed HHS Secretary (meaning, the President himself), good for bad for the Catholic Church.
    2. If this, combined of course with this also being the most pro-choice President we have ever had, is a ‘bad thing,’ then….
    3. Will there be calls from within the Catholic Community — within the Church and from the lay community, to defeat Barack Obama in November?

    Unless there is a real effort to stop tiptoeing around out of some sort of “sensitivity” to the millions of Catholics who put their money in the collectino plate, but are also registered Democrats, to not only completely reverse the 53-47% margin of victory Obama enjoyed with Catholics in 2008, but to make it something like a 40-60% difference, then — as harsh as this feels for me to say — the Church and its members deserve what we get.

    Romney, for all his faults (which are many) has promised to repeal this monstrosity. A GOP controlled House and Senate will assure that it happens. Are we going to start seeing actual NAMES on signs at these Church endorsed “Freedom of Religion” rallies?

  • Sam Schmitt

    The fact that Congress or the Pres said it was not a tax is not determinative from a Constitutional perspective.

    True enough, but it’s not just a matter of Congress or the president calling it a tax or not. Making it a tax defies the intent of Congress, and makes nonsense of the plain and reasonable meaning of the language of the statute (even Roberts concedes that it is a penalty according to the “natural reading” of the law, i.e. it says that people “shall” purchase insurance or pay a “penalty”). Plus the bill originated in the Senate, not the House, where according to the Constitution, any and all budget bills – including any bill raising taxes – must originate. This last point is one of the reasons Obama et al were so anxious to deny this bill was a tax bill.

  • MJB Wolf

    We conservatives have been asking for judicial restraint, supreme modesty, and CJ Roberts gave us that. My reaction is that this was a thoughtful, wise and MODEST decision that established a limit to the Commerce Clause and set an example that — if we are fortunate — future courts should follow. This was the opposite of activism and conservatives should applaud it. Political problems can be fixed by Congress. The SC has tripped out what was plainly unconstitutional, labelled the penalty correctly as a tax and left the mess for Congress to repair through the proper channels.

  • Oregon Catholic

    “It is essentially saying “you made the bed (through voting these guys in), you now get to sleep in it (or “remake” the bed by voting them out).”

    I guess that might be a valid and consistent opinion if Robert’s hadn’t also voted to uphold unlimited corporate campaign contributions. He is basically saying the populace should depend on an electoral process to protect them that they don’t really own anymore. It also pretends we really have a choice with a meaningful distinction between the 2 parties where economics is concerned.

    Robert’s used a political strategy to avoid appearing political. Yep, that sounds consistent.

  • Chris

    “We conservatives have been asking for judicial restraint,”

    Restraint, not abdication. We got abdication.

    [No, we didn't. We got told to grow up and stop expecting everything to live and die by the courts, which is not serving us well. -admin]