On the heels of the ObamaCare ruling today, I spoke with Stephen B. Presser, a professor of legal history at Northwestern University’s School of Law (check out his latest CNN.com piece on the ruling.)
Presser was critical of the decision, calling the notion that the mandate was, in fact, a tax, “contrived and unsatisfactory,” and adding:
I had thought that everybody had more or less come to the conclusion that this was not a tax, because if it was, then the Anti-Injunction Act would have meant that the challenge was premature. Now, suddenly, it’s not a tax for the purposes of the Anti-Injunction Act, but it is a tax for the purposes of upholding the legislation…”
SCOTUSblog has an explanation of why “the Anti-Injunction Act didn’t preclude judicial consideration of the individual mandate.” I’ll leave it to you to decide who’s right.
On the notion that Chief Justice John Roberts could simply deem the mandate a tax, Presser made an interesting point:
The bill was sold as not a tax, … there are a lot of people who believe the bill would not have passed if this were explicitly labeled a tax … so, in a way, what the Chief Justice has done here … is rewrite the legislation and alter the politics of the issue…”
So what explains Roberts’ rationale? Were conservatives duped? Some of this can probably be explained by judicial philosophy.
On the concepts of “originalism” versus “judicial restraint,” Presser noted that Justice Roberts “has said that judges ought to be umpires … and if that’s not the central principle of originalism, then I don’t know what is.”
On the other hand, Presser added: “What you’ve got here is … if you can salvage the constitutionality of a piece of legislation, you should do it, because the court shouldn’t often find acts unconstitutional.”