“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” This has been the primary function of the Supreme Court since Chief Justice John Marshall recognized the court’s check on legislative authority in Marbury v. Madison (1803). This much our current Chief Justice understands. But as so often happens, it is not the power of constitutional review itself but the philosophy of those who wield it that failed the United States yesterday.
But before lambasting Chief Justice Roberts any more than he has been already – him moreso than those he joined, as he was held to a higher standard to begin with – let us examine his ruling. Though there is certainly discussion to be had about other portions of the opinion – some of them valuable – the primary concern here is the Court’s decision to uphold the individual mandate, and so too Obamacare.
With regards to the government’s argument that the individual mandate could be upheld under the Commerce Clause (Article I, §8, cl. 3), Roberts deserves credit for rejecting this argument. I quote from his opinion:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to ‘coin Money,’ in addition to the power to ‘regulate the Value thereof’ Art. I, §8, cl. 5. And it gives Congress the power to ‘raise and support Armies’ and to ‘provide and maintain a Navy,’ in addition to the power to ‘make Rules for the Government and Regulation of the land and naval Forces.’ Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.”
In essence, there was a logic to how the Framers drafted the Constitution. As Roberts points out, “The enumeration of powers is also a limitation of powers, because ‘[t]he enumeration presupposes something not enumerated.’ Gibbons v. Ogden, 9 Wheat. 1, 195 (1824)… If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.” True enough. Those who wrote our Constitution did so carefully. They included each clause for a specific purpose, doing so in such a way that their intent (and so too the proper interpretation of the Constitution) could be followed and understood with as little ambiguity as possible.
Noting this, Chief Justice Roberts found that the government’s argument on this point was unfounded on the principles of the Constitution:
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority…
The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”
Were it that this was the only constitutional issue under question, this case could have ended happily for those who have fought this law for the last two years. As is the case, there was another angle by which the government argued its case. Though President Obama promised on the campaign trail to not raise taxes on anyone making less than $250,000 a year, the government changed its tune when Obamacare was challenged in court.
The reason being is that ever since Helvering v. Davis (1937), Congress’s tax power has been construed very, very broadly. Article I, §8, cl. 1 declares, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” In the words of Chief Justice Roberts, “Put simply, Congress may tax and spend.”
Without delving into the inherent immorality of taxation as it has already been discussed at length throughout the history of this publication, one should focus less on the taxation part of the clause and instead on the second portion. The words “to pay the Debts and provide for the common Defence and general Welfare of the United States” distinctly outline for what purposes Congress can be allowed to tax. As per the Chief Justice’s own opinion, the Founders did not enumerate clauses which “would have been unnecessary” to include.
But why would the Framers include an infinitive phrase describing what the taxes can be used for (not to mention the remaining clauses in Article I, §8) if the power to tax already included them? Because in this case, those writing this clause were not expanding Congress’s power. They were restricting it. Should the Founders have wanted to give Congress an unrestricted power to tax and spend, the addition of the second portion of the clause would have been entirely unnecessary. But the fact is, they limited Congress’s power to tax and spend to certain limited items – the manner, amount, and purpose of taxes are limited accordingly.
It is Congress’s power to tax and spend for the “general welfare,” however, which has been misconstrued to allow Congress to tax almost anything, in any way, for any purpose. James Madison foresaw this problem and answered it in The Federalist, No. 41:
It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alledged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expression just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare.’
But what colour can the objection have, when a specification of the objects alluded to by these general terms, immediately follows; and is not even separated by longer pause than a semicolon. If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it; shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent and the clear and precise expressions, be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which as we are reduced to the dilemma of charging either on the authors of the objection, or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”
In other words, the term “general welfare” is qualified by the subsequent clauses in Article I, §8. If Congress is not given the particular power in the subsequent clauses, then it is not implied in the general power outlined in the first. This applies to both taxation and spending.
But this changed in the 1930s. In three decades, the Supreme Court had went from its pinnacle of capitalist jurisprudence in Lochner v. New York (1905) to unraveling all that the Lochner Court had achieved. President Franklin D. Roosevelt and the justices he appointed to the High Court represented his brand of Progressivism, interpreting the Constitution as a doctrine of fluid, transient moral and legal principles. Thus, FDR was allowed to pass all measures of constitutionally and morally perverse legislation, like the Social Security Act of 1935:
“The first… challenges [to the Social Security Act of 1935] arrived in the Supreme Court in 1937: Helvering v. Davis. Just a few months before ruling on Helvering, the Court decided West Coast Hotel Co. v. Parrish (1937) which overturned Adkins v. Children’s Hospital (1923) and ended the thirty-two-year reign of the Lochner era. Now that the Court looked more favorably upon government intervention in the economy, it should come as no surprise that the Supreme Court ruled that the Social Security Act was constitutional, much to the chagrin of George Davis. Davis, a business owner, sued the federal government on the grounds that the requirement placed upon him by the Social Security Act to pay into the insurance program for his employees was an unjust expansion of the government’s power.
Justice Benjamin Cardozo, author of the 7-2 majority opinion, disagreed. In his opinion, Justice Cardozo declared that the Social Security Act did not, in fact, set up an insurance program but that it instead set up a type of welfare for which the government could lawfully tax (3). Basing his opinion largely on Article I, Section 8, Clause 1, Justice Cardozo stated that ‘the concept of general welfare [is not] static’ and was therefore open to interpretation by the Court (it is not – ‘general welfare’ is qualified by the immediately subsequent clauses in the same section, as per Madison’s own words in The Federalist, but such logic meant little to Justice Cardozo and his colleagues) (4). Interestingly, the Court struck down similar legislation in United States v. Butler (1936) on the grounds that the processing of taxes in the 1933 Agricultural Adjustment Act violated the Tenth Amendment. The distinction between Butler and Helvering, asserts Cardozo, is that, in Butler, the tax was merely ‘a means to an unconstitutional end’– in Helvering, the Court forwent its role as defenders of the Constitution and of the liberties enumerated therein and ruled that the end was somehow valid, and so too the tax. How was the end valid? Supposedly, it served the ‘public good.’ Why does that justify violating individual liberty? Blank out.”
Even so, it was on the principles of Helvering that the Chief Justice based his ruling. In the Chief Justice’s own words, Congress lacks the authority to compel or coerce individuals into participating in interstate commerce under the power delegated to it by the Commerce Clause. Thus, achieving the same through the use of Congress’s tax and spend power is equally illegitimate. The purpose of the tax was to coerce all individuals into purchasing private health insurance – as this is not allowed by any of Congress’s other powers, nor is it allowed by the taxing power. Bear in mind this is by no means my sanction for the federal government to regulate those who do participate in interstate commerce anymore than those who do not — saying the law is unconstitutional because man has the “right to do nothing” was a doomed defense from the start. Even constitutionally, delegating the power to “regulate interstate commerce” to the federal government was a means of ensuring free and unrestricted commerce between the states, not hindering it, so Obamacare is unconstitutional on many levels.
But for all intents and purposes, the Chief Justice followed precedent. The precedent is abhorrent, a deviation from rational constitutional principles, and just generally bad law. But regardless, it is precedent.
There has been some sigh of relief from many Americans that Justice Roberts and the liberals did not justify this ruling on the Commerce Clause. I respectfully disagree with those sentiments. Has not the Commerce Clause itself already been rendered impotent by the current precedent on General Welfare Clause? Has not Chief Justice Roberts allotted to the federal government the exact same power it sought, differing only in the avenue he took to do it? So long as Congress’s tax and spend powers are defined so expansively, very little is out of bounds. Under current precedent, not only is the individual mandate permissible, but so too an entirely government-run healthcare system equivalent to the nightmare in the UK – all based on the notion that the government can “tax” you into a single-payer government plan whenever they so choose, Commerce Clause or not.
It is odd to think that just a few days ago, most legal scholars were convinced that it was Justice Kennedy who would be the deciding vote on this case. But Justice Kennedy dissented, and did not do so lightly. As per the dissent, Kennedy and the other dissenting justices found “the Act invalid in its entirety.” As far as this writer knows, there was no legal scholar or analyst in existence that predicted Chief Justice Roberts, a conservative, would join with the four liberal justices in upholding the individual mandate.
But upon further review, it only seems natural. What we see before us is the logical conclusion of conservative principles, at least as far as pervading trends within American conservatism go. In modern conservatism, there are three main defenses conservatives offer for “capitalism” according to Ayn Rand: the appeal to faith, the appeal to tradition, and the appeal to depravity. It is the second employed by the Chief Justice.
Chief Justice Roberts did not uphold the law because it was “good” or even that the precedent was “good.” He upheld the law because precedent – i.e., an established judicial tradition of sorts – dictated that it ought to be upheld.
Even the dissenters exhibited the same intrisicism. The dissenters were left debating the superficialities of whether the individual mandate was a tax or not rather than addressing the fundamental issue. Instead of challenging the basic premise that the federal government has the constitutional authority to tax in this manner for this purpose in the first place, the conservative justices were left debating concretes rather than ideals, than principles. This trap was set by the Obama Administration from the beginning, intentionally or not. “Their aim,” correctly argues Slade Mendenhall, “is to lure the Right down from the moral high ground to the nitty-gritty of bare knuckle politics.” And so, the conservative justices and the state attorneys general conceded defeat from the outset.
Chief Justice Roberts only exemplifies this attitude further in his opinion. In it, he argues that “the Framers… were ‘practical statesmen,’ not metaphysical philosophers.” As gross a mischaracterization this is of the men whose entire design of the federal government was constructed such that it would be unable to injure man’s rights, this is the kind of philosophic focus (or really, a lack thereof) that guided the Chief Justice in his decision-making process. He rejected what he quoted as “toying with speculations or theories” in favor of the “facts of political life” – “facts” meaning the immediate, the accidental, the concrete, not “facts” on any kind of philosophic level. Where did he get that quote? From South Carolina v. United States (1905), the same court who wrote the Lochner decision (though Justice Rufus Peckham, the legal mind who wrote the Lochner opinion, dissented), thus demonstrating the Court’s intermittent though increasingly consistent lack of a philosophic depth over the last 100+ years.
The Tea Party and many others in the American right have shown positive signs of effectively reversing that trend in recent years. The increased discussion of what is “right and wrong” coming from someone other than the left is certainly a welcomed aspect in today’s political environment. Still, there is progress to be made.
Too often today the American right fall into the exact same errors as Justice Roberts. They speak of the “value” of the Constitution intrinsically, as if it is good in and of itself while ignoring the fact that there are problems within that ought to be changed. As I have stated before, “It should be remembered that this should be the goal of those who love liberty: not returning to the Constitution, but perfecting it.” The fact that today’s ruling is even possible is but one of those errors that ought to be remedied.
Others in the right still get caught debating concretes rather than principles. Just observe how Republican candidate Mitt Romney runs his campaign. How often does he argue that President Obama’s policies should be rejected because they “violate man’s rights?” And how many times does he argue that they should be rejected because they are “ineffective?” Though the moral is always the practical, as that which is moral is that which pursues man’s long-term rational self-interests, man cannot defend the principles of a limited government if he himself does not speak on a principled level.
All in all, the ruling was a disappointment. But as Onkar Ghate of the Ayn Rand Center for Individual Rights points out, “the Supreme Court’s ruling on the individual mandate should not be surprising.” And indeed, it is not insofar as it follows directly from established court precedent and the philosophies of those on the bench.
And though those who oppose Obamacare can receive some solace from the fact that Eric Holder was found in contempt of Congress on the same day by the entire House of Representatives, it does not return to them the liberties which are rightfully theirs. “[T]he greatest threat the judicial system poses to individual liberty arises through the neglect of its actual responsibility: serving as an impartial arbiter between the political branches of the government and the people, the ultimate guardians of the Constitution, if and when the people forget the importance of their own liberty.” Unfortunately, it did just that.
Regardless, there is one unmistakable truth within Chief Justice Roberts’s opinion, even if he did not intend it to be understood in this way. Today, we live in a nation where the limitations on governmental authority have progressively eroded away, unduly granting to the government the power to violate man’s rights and to dictate many aspects of his everyday life. As Chief Justice Roberts rightfully stated, “That is not the country the Framers of our Constitution envisioned.”
For further analysis of the ObamaCare ruling, we recommend Slade Mendenhall’s article here.