Friday, June 29, 2012
The Supremes let the health care act survive
The decision dealt with the question of the mandate: either buy health insurance or pay a fee. Was this requirement a mandate or was it a tax? A scholar belonging to the "original intent" school of constitutional law could argue either way. If it's a requirement that citizens must buy something, like broccoli, it's unconstitutional. If it's a tax, then it's constitutional. Congress chose to label it a mandate. The court said, no, call it a tax and it's constitutional. I won't argue whether it ought to be called a tax or not. I am interested in the one conservative justice who joined the liberal group in this close 5 to 4 decision. Usually the deviant conservative is Justice Kennedy. This time it is Justice Roberts. He is reviled by conservative spokesmen as a turncoat. It certainly represents a big change in Mr. Roberts' thinking, and that is my question: What was he thinking?
It's clear to me that, conservative or not, a person who follows the "original intent" theory of constitutional law could decide this matter either way. If the requirement to buy insurance is a mandate, it's unconstitutional. If it's a tax, it's constitutional. It's clear to me that Mr. Roberts was thinking of the result of the decision. He has stated that he doesn't like close decisions because they reflect badly on the Court. He realized, as did everyone, that a decision to void the law would cause much turmoil and bitterness in the government and the people. The negative effect on the court would be greater than that of the "Citizens United" decision. He could argue in favor of the law on respectably conservative grounds. The constitution gives Congress the power to levy taxes. Case settled.
We must wait for other decisions to see whether this case represents a change in Mr. Roberts' thinking, or whether it's just a fluke. I'm hoping for a change.