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Obamacare Upheld, 5-to-4: A Perverse Decision That Undermines Political Accountability

Today, in a really perverse ruling, the Supreme Court upheld Obamacare's individual mandate as a tax in a 5-to-4 decision, even though Obamacare's supporters repeatedly denied when they were passing it that it was a tax. (The Court did concede that the individual mandate wasn't valid under the Constitution's Commerce Clause, so it instead relied on Congress's tax power.) This ruling lets politicians avoid the political heat by denying that something is a tax in order to pass it (as President Obama and congressional leaders did, to deny that they had broken Obama’s pledge not to raise taxes on anyone making less than $250,000 a year), even if they intend for it to be upheld later as a tax. That undermines political accountability, and gives cover to fork-tongued politicians seeking to bamboozle their constituents.

To uphold Obamacare as a tax, the Court twisted itself into a pretzel, first treating Obamacare as not a tax for purposes of the Anti-Injunction Act in order to rule on the merits of the challenge, then upholding it as being a tax for purposes of the Constitution. (The Anti-Injunction Act prevents the courts from ruling on constitutional challenges to taxes before they are collected.) I explained earlier how upholding Obamacare cannot be justified under the Commerce Clause, since it would effectively remove any limit on federal regulatory power, violating principles of federalism.

Some press accounts have claimed that Roberts, who authored the Court's opinion, is a “conservative” justice (his ruling was joined in large part by the Court's most liberal justices). I’ve never considered Roberts a “conservative justice.” Whatever his personal inclinations may be, he is subject to the peer pressure of being in a largely liberal milieu. (And his decisions reflect that, since he has joined in many liberal rulings). The Supreme Court bar, Supreme Court reporters, and lawyers in general are largely a liberal bunch. Lawyers are much more Democratic-leaning than the general public (the Harvard Journal of Law and Public Policy once noted that Clinton beat Bush by a nearly two-to-one margin among lawyers, despite winning by only several points among the general public). And even so-called “conservative” justices are products of the liberal legal community. Being a "conservative" lawyer is like being a "conservative" Democrat -- conservative only in relative rather than absolute terms. The fact that the legal community is much more liberal than the public at large results in peer pressure for judges to uphold laws backed by liberal politicians even in the face of well-grounded constitutional challenges.

As George Mason University law professor David Bernstein notes, the Supreme Court may have once had the votes to strike down Obamacare in its entirety, until Chief Justice Roberts switched position and voted to uphold the law under pressure from President Obama and liberal commentators. Professor Bernstein points to tell-tale references in Justice Scalia's dissent:

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion . . . to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.

I’ve said many times that this is not a conservative Supreme Court. The Supreme Court is more hostile to business than the average federal appeals court, routinely reviving lawsuits against businesses that were dismissed by federal courts below, and it has struck down state sentencing practices upheld by most state courts, overturning thousands of criminal sentences for reasons having nothing to do with guilt or innocence.  (On Monday, for example, the Supreme Court struck down laws in 29 states mandating life without parole for certain juvenile murderers, and questioned whether judges could voluntarily impose such life sentences at all. Was that conservative?)  Chief Justice Roberts joined in a great many of these liberal rulings (although not the one on Monday).  For example, he joined liberal justices in striking down many state criminal sentencing schemes, in cases like Cunningham v. California.

Regardless of whether it is unconstitutional, Obamacare will harm the health care system and reduce employment. The Dean of Harvard Medical School, Jeffrey Flier, noted that Obamacare will harm life-saving medical innovation. Obamacare is causing layoffs in the medical device industry. The healthcare law taxes medical devices and cosmetic surgery, arbitrarily discriminates against certain hospitals, and raises taxes starting in 2013 on investors. The Associated Press and others have noted that it breaks a number of Obama campaign promises.