John Roberts’ judicial activism and the health care law that time forgot
posted at 12:12 pm on June 29, 2012 by Howard Portnoy
Following oral arguments on his health care law back in April, a dejected and petulant President Obama groused in a Rose Garden speech that conservative commentators are forever bemoaning judicial activism. He noted that “this,” referring to the Supreme Court’s decision to probe the constitutionality of his signature legislative achievement, was “a good example.”
He was right, as it turns out, but for the wrong reasons. Evaluating constitutionality of laws—even ones bearing (perish the thought!) Obama’s John Hancock—is well within the high court’s purview. In fact, that’s the key function of the judiciary (aka “Constitutional court”) as a branch of government. Anything beyond that is judicial activism.
Example: interpreting the individual mandate in the Affordable Care Act so broadly that it in essence becomes a different law from the one Congress voted on. That is what Chief Justice John Roberts did on Thursday.
Justices Kennedy, Thomas, Alito, and Scalia argued as much in the dissenting opinion, writing, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling.”
In support of their claim, the minority noted that Congress’s intent was reflected not only in the spirit of the health care law but in the letter:
[T]he mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’ In sum, ‘the terms of [the] act rende[r] it unavoidable,’ Parsons v. Bedford, 3 Pet. 433, 448 (1830), that Congress imposed a regulatory penalty, not a tax.
The proof of the pudding of course is contained in the words of the president who repeated on numerous occasions that the individual mandate was not a tax. If it were, he would be guilty of reneging on his promise that on his watch “no family making less than $250,000 a year” would their “taxes increase one single dime.”
The most troubling aspect of Roberts’ ruling is that it catapults the law and nation into uncharted territory. We are now in the land of what-if. What if the Congress had tried to push through a health care reform law that would be funded by levying a tax? Would former Nebraska Sen. Ben Nelson, who was the make-or-break vote, have voted for the law’s passage? How about other members of the Senate who supported the law as written?
As noted earlier, the Supreme Court is well within its powers to judge the constitutionality of a law. But once its justices rewrite the law, all bets are off.
Dorothy, we aren’t in Kansas anymore.
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