Archive for June, 2012

The Enemy of My Enemy is Not My Friend, or John Roberts Plays the Long Game

June 29, 2012

It was only last week when liberal pundits were more alert.  Well, some of them weren’t—after all, we’re talking about people identified as “liberal” by those who consider Ross Douthat and David Brooks to be mainstream.

What some of them knew about Arizona, all of them appear to have forgotten about PPACA.

The Supreme Court decision last week invalidated three points of severe state overreach; even Anthony Kennedy couldn’t imagine that “you will carry your papers at all times” was reasonable.  But they left in place a fourth issue—collateral paper-checking for another reason—until it could go into effect.  After all, if it really was all about security, the police will act completely appropriately.  And if they do not, there will be a case that will reach the Supreme Court after the law is in effect and further revision will be possible.

Steve Benen (h/t Erik Loomis) appears to have gotten it correct: John Roberts took one look at the company he was keeping—and maybe spoke with a few hospital administrators—and flipped sides. Or, to quote Benen:

And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks

What abides is that Roberts also knows that he will probably get a better case from which to dismantle “Obamacare.” It didn’t especially take contortion to call the penalty a tax. There is only one Federal enforcement mechanism—and the States were not required to put any penalties of their own in place, though it seems likely some will do so—and the agent of that enforcement is the Internal Revenue Service.  (This is, btw, one of the places where ObamaCare most clearly resembles RomneyCare—down to the penalty being too low to, in itself, convince people to buy insurance.)  For Roberts, it’s a small step to saying that it is enforced and administered in the same manner as a tax, and therefore it may be called a tax.  Voila; he doesn’t have to declare that we have returned to the 19th Century. He has those votes when he wants them: when the “tax” is administered “unfairly.”

But the first time anyone will have to pay the penalty tax for not being insured will be some time in late 2014 or early 2015, when 2014 Federal Income Tax forms are filed.

As with Arizona last week, there is a difference between “the benefit of the doubt” and “giving them enough rope with which to hang themselves.”

John Roberts had a choice today: he could vote with business interests, entrepreneurs, and hospitals who want to be able to make a reasonable estimate of their costs over the next several years—or he could overturn PPACA and with it establish his Court as the one that completely destroyed the possibilities of business certainty (or even labor cost control)  and a dependable macroeconomy (since the minority opinion, as Benen notes, also strongly suggests the Federal government should not have the power of taxation).

As the man who literally Wrote the Book on Constitutional Law, Laurence Tribe (h/t Blue Texan) noted, John Roberts “saved an institution”—the Supreme Court itself—today.  But anyone who believes he also preserved national health care instead of giving it enough rope to hang itself is fooling themselves.

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