Friday, June 29, 2012

The Ruling

As a foreword, I just want to say that this was a case where Intrade was irrationally exuberant. Even though I thought Roberts would almost definitely join the side that would strike down the individual mandate as unconstitutional, I would have never put up 3 to 1 odds against it. I guess even those with money on the line can be fallible.

But let's get right into the decision. A 5-4 ruling in favor of the PPACA. What surprised me is that the swing voter Justice Kennedy sided with the conservative court, while Roberts sided with the liberal side. At this point, the media can't claim that Roberts isn't what he says he is: an umpire who calls strikes and balls.

To keep up with the sports metaphor, I think Roberts really dropped the ball on this. The problem with his reasoning is that he essentially opens the back door to unlimited Federal power. By ruling that Congress can tax inaction (in addition to their uncontested power to tax action), he has essentially ruled that the Federal government can create any law so long as noncompliance with the law is subject to a tax.

In other words, "we can't make you do anything. But we can sure as hell make you wish you did." Even though Roberts ruled that Congress doesn't have the power to force commerce under the Interstate Commerce Clause, he ruled that Congress can do anything under their powers of taxation. The logic is baffling, and I can't understand how Roberts was able to reconcile that with his view of Federalism.

Maybe the simplest answer is that Roberts is a strict constructionist. Nothing matters except the letter of the law. And to be perfectly clear, there is nothing in the Constitution that says Congress can't impose a tax on inaction. To square that away with being unconstitutional, a Justice would have to say that the Federal government does have enumerated powers, and those enumerated powers were created due to Federalism, where upon the states would have the broadest powers while the Federal government's laws would be narrow and specific in scope.

Ultimately, the Supreme Court has the final say in any law, and they ruled for the health reform law. And you can spin this in such a way that Roberts did exercise judicial restraint in not striking down a law that was passed by a majority of elected lawmakers. Roberts made no such opinion on the effectiveness of the law, only the legality of it.

From that perspective, he truly did fulfill his duty as an umpire. And while I think his logical reasoning was flawed, or at least permits unlimited Federal power, which violates the spirit of the Constitution if not the letter of it, it still is an issue of democracy.

We the people have the power to repeal or affirm the PPACA. Judicial restraint requires big citizenship to make government function properly. If the Supreme Court rules it legal, then it's up to the voters to elect officials who want to repeal that law. We deserve the government we get, and the upcoming elections will decide how free Americans want their country to be.

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