Four months have passed since Chief Justice John Roberts made Obamacare’s individual mandate a tax and thereby let stand one of the two laws most responsible for our sluggish economy (the other being the Dodd-Frank financial “reform”). I was in the courtroom that fateful June day and my emotions quickly cycled through shock, denial, anger, and later depression — why had I dedicated myself to the law when the most important case of my lifetime turned out in this illegitimate way? — before settling into the “bargaining” stage of grieving.
I’m still there. I just cannot get over that blow against not only sound jurisprudence and the rule of law — bad enough — but against the legitimacy of our government altogether. By recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice.
To be sure, the decision was a win for constitutional jurisprudence in at least four ways:
(1) It is now clear that the government can’t compel activity in order to regulate it;
(2) Legislation that is “necessary” may still be unconstitutional if it is not “proper”;
(3) The narrow taxing power ruling allows the government only to levy small taxes on decisions not to buy something, but Congress won’t ever use this power because it can achieve the same economic goal by offering (politically easier) tax credits for buying that thing; and
(4) For the first time ever, the Court — by a 7-2 vote! — found that the federal government cannot coerce the states by attaching too many strings onto federal funding.
Still, by letting Obamacare survive in such a dubious manner — I call it a “unicorn tax,” a creature of no known constitutional provenance that will never be seen again — Roberts undermined the trust people have that courts are impartial arbiters rather than political actors.
To put it another way, having filed 10 amicus briefs (four in the Supreme Court), written dozens of articles and blog posts, engaged in more than 100 public debates, and attended all the appellate arguments — in the circuit courts in Richmond, Cincinnati, Atlanta, and D.C., as well as at the Supreme Court — I thought I knew what to expect. In my early writings, I had predicted that the Court would either strike down the law or find some procedural way (such as standing, ripeness, or the Anti-Injunction Act) to avoid ruling on the merits and thus allow it to stand. I was nevertheless gobsmacked to hear the chief justice hand the government a bottom-line victory while neither expanding federal regulatory power nor dismissing the case on some technicality.
I never thought I could feel so empty (still!) after having Court majorities offer such ringing endorsements of my theories (and not mine alone) on the Commerce, Necessary and Proper, and Spending Clauses.
What had I (and everyone else) missed? The possibility that the ruling would be based on something other than competing legal theories. That is, eight justices decided the health care cases on the law — four finding that the Constitution limits federal power, four that constitutional structure must yield to “Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy” — and one had other concerns on his mind.