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JUNE 29, 2012 12:10PM

The Roberts Wager: How the Chief Justice Made the Riskiest Bet in Supreme Court History

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decisionpaper 300x300 The Roberts Wager: How the Chief Justice Made the Riskiest Bet in Supreme Court History

Well, it happened. As the liberals began to write their “final” obituaries for the honor, integrity, and independence of the highest court in the land and the conservatives began salivating at getting a big judicial victory of their own… as legal scholars (of which everyone was today) and cable news pundits began to wonder about what would happen to an individual-mandate-less ObamaCare bill between now and election day… the Court did what the Supreme Court so often does – surprise every single one of us.

I sit down at the end of a long day, where I read and summarized the entire majority and dissent decisions.  I only skimmed Ginsburg’s ode to limitless government and read summaries of its love of centralized power.  And what’s on my mind? What do I have to offer the blog world that hasn’t already been said by better writers, better thinkers, and ladies and gentlemen who get paid to do this?

As I sat in my office, debating on Facebook and Twitter (if only the Founding Fathers would have seen this thriving, vibrant democracy and the ever-increasingly-spinning-faster media cycle, they would have probably – I dunno – been happy they created the Electoral College), reading the decisions, and thinking about the bizarro world we had entered, I kept coming back to one question: What was Chief Justice John Roberts thinking? After the initial shock of hearing the individual mandate was struck down as unconstitutional, then realizing the Supreme Court ruled it a tax (despite the President insisting it was anything BUT a tax) and it WAS constitutional, there came the shock that Chief Justice Roberts sided with the four “liberal” justices and Justice Kennedy (the swing vote expected to decide the case) was reading the case for the dissent, with lines like, “For the reasons here stated, we would find the Act invalid in its entirety“… 

WHAT?!? What kind of bizarro world was this? So I dove into the opinions, read them, and here are my thoughts before going to bed…

Chief Justice Roberts 226x300 The Roberts Wager: How the Chief Justice Made the Riskiest Bet in Supreme Court History

1) What Happened?

If you realize and are willing to admit (seemingly few of us today) that you’re not a constitutional legal scholar or don’t read hours of political articles a day like I do, you may be wondering what exactly happened. Here it is, as briefly as possible…

The Democratically-controlled Congress (with not a single vote from a Republican) passed and the President signed the Affordable Care Act, the most sweeping health care reform legislation since the New Deal.  A key component of this bill was the individual mandate, basically requiring every American not on Medicaid or Medicare to have health insurance.  If they refuse to get health insurance, they will pay a penalty to the U.S. government.

The Supreme Court was ruling on whether this mandate that people buy health insurance is constitutional or not. The Government made two arguments as to its constitutionality:

a) Congress can make citizens do this under the Commerce Clause.

b) Congress can make citizens do this because it’s basically like a tax.

Now the second argument here is quite interesting given how persistent President Obama and the Democrats were that this was not a tax. But the government made this argument on a whim that maybe, just maybe, it could save their bill.

Chief Justice Roberts, writing really only for himself (and therefore uncertain how much legal weight it will carry in the future – another debate for another time) but in principled agreement with the conservative justices, states:

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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.” (p. 20-21)

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.” (p. 23)

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”  (p. 27)

THEN… the twist occurred.  Despite the 2,000+ pages of the bill never calling the individual mandate a tax (so that moderate Democrats and the President could claim that none of the higher payments on individuals and businesses would be a tax increase) and the President’s insistence that it wasn’t, Chief Justice Roberts and the four “liberal” justices ruled that the individual mandate could be constitutional under Congress’ taxing power.

Essentially arguing that it sounds like a tax, looks like a tax, walks like a tax, and acts like a tax, the Highest Court in the Land upheld the Health Care Reform bill as constitutional.  In a decision that made some interesting, not to mention logically spurious, legal maneuvers, the individual mandate was declared a tax… and constitutional.

The Chief Justice, writing the primary opinion, wrote extensively about the limits of the Court – to overturn the laws of the democratically elected branches – and the federal government, by limiting Congress’ abilities to pass laws under the Commerce Clause and to strong-arm the states into implementing federal policy.

While the left celebrated (cautiously though wondering what effect Roberts’ legal reasoning would have long-term on a progressive federal government) and the right slumped their shoulders and wondered what happened, the Court ended its term and the 2012 Presidential election began a new chapter.

2) THE ROBERTS WAGER: Why Chief Justice Roberts Did It

This is clearly the biggest question of the day and one we’ll only know when justices are retired and memoirs are written. Even then, as we all know, legacies will be on the line and history has its special biases and revisions based on the historian telling the story. But I have a theory, that although not completely my own, that I’m calling The Roberts Wager.  My theory is that the Chief Justice is betting on the democratic process, the American electorate, Mitt Romney, congressional Republican candidates/moderate Democrats in conservative districts/states that want to overturn ObamaCare, and a long legacy ahead of him. It’s a risky bet that he’s making, and one that more-than-likely won’t pay off for those of us who know the repeal of ObamaCare is what’s best for finding long-term solutions to our health care problems. And, if it doesn’t, then this Roberts decision will be viewed in history as poorly as it is right now by so many of us conservatives.

*Disclaimer: This is not an article arguing health policy. That one will certainly come later. Suffice it to say, the Affordable Care Act, though having some admirable goals, does very little to solve the long-term problem facing our nation’s health care system: the exponentially upward-expanding cost curve.*

I believe Charles Krauthammer gets it mostly right. In an era post-Roe v. Wade, when the Court made many questionably legal, politically volatile decisions, the Court’s integrity has been questioned.  After Bush v. Gore, it was questioned even more as just another political branch. (Once again, I’m going to avoid arguing against these flawed arguments, but it’s how the mainstream media tells the story so it’s believed by many.)  I said it tonight at dinner, then read it by Krauthammer – I honestly think that Roberts may have voted differently if he weren’t the Chief Justice.

But he is Chief Justice. He did feel the responsibility of standing up for the Court. He did feel the responsibility to stand up for his conservative values.  But he ultimately decided the two were in conflict, so he tried to walk the middle line, which was shaky at best.  The key arguments in the opinion of the court (the mandate is a tax, it’s not a direct tax, it’s not ruled by the Anti-Injunction Law) were not fleshed out very much, with hints from the dissent that they weren’t deliberated much either. But Roberts took the reins, made the call, and decided to use it as an opportunity to reign in commerce clause jurisprudence, protect federalism/states’ rights, and make a principled stand (even though he was all alone) for judicial restraint and deference to the democratically elected branches.

So what was The Roberts Wager?

He was betting that history, the voters, the Republican Party, and his future decisions in what will likely be a decades-long run as Chief Justice will vindicate him with disappointed conservatives.  He is betting that quotes like the ones below will spur the GOP and the right to win in November and repeal ObamaCare through the democratically elected branches, providing a much more definitive end to the law without embroiling the High Court in its demise.

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.”  (p. 2)

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”  (p. 6)

He is betting that this stand for judicial restraint will echo forward for decades when the GOP take office and act. He is betting that he will get a chance to overturn Roe v. Wade; after all, if he does that, will conservatives still claim he is a turncoat? (Of course not!)

He is betting that, like John Marshall in Marbury v. Madison, he’s sacrificing the battle to win the war, hoping the battle is also won in a more convincing way in the democratically elected branches.

He is betting that his arguments about limiting the Commerce Clause’s power and standing up for federalism and states’ rights will control the Court’s decisions for decades.

He is betting that “the court has been persuaded to think more as [conservatives] do about the constitutional language that has most enabled the promiscuous expansion of government.

He is betting that he is “taking the court off center stage and, by letting the political process play out,” he is enabling Republicans to land a definitive blow to ObamaCare and replace it with a more incremental, trial-and-error, targeted approach to solving our health care system’s biggest woes.

He is betting that this will help the GOP by forcing President Obama and the Democrats to defend one of the most massive tax increases in history. 

The dissent and many commentators today make excellent points that I cannot disagree with. Ultimately, what happened was “[t]he Chief Justice in effect revised the statute in order to find it constitutional.” The dissent commented similarly, stating jointly that the logic “is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.” The WSJ rightly points out the sadness at the possibility that the Chief Justice capitulated to the left’s campaign to frame an overturning of ObamaCare as partisan and illegitimate.

But I don’t think that’s what happened. There’s a chance, as my co-worker thinks, that C.J. Roberts simply thought that his decision is what the law should be. But I still think, to some extent, it’s a wager. What the wager Roberts consciously made, we’ll never know. He did include several subtle digs at the Affordable Care Act in his decision. I’m betting that he was betting that this decision, in the long term, can be vindicated. He’s betting that his legacy as a Chief Justice can be one which brought judicial restraint back to the Court and limited governance back to the beltway.

It’s a risky bet. A bet I probably wouldn’t have made. A bet that required some logical, legal, and semantic tricks that the dissent simply did not buy. I’m still unsure whether I do or not. But it remains the riskiest bet in Supreme Court history. I hope it pays off, but I doubt highly that it will in all the ways I’ve discussed, meaning this Roberts decision could be as wrong as so many of us think it is right now.

A lot of things are still uncertain today: the long-term impact of this Supreme Court decision, why Chief Justice Roberts did what he did the way he did it, the long-term effects and fate of ObamaCare, who will win in November and what they will do with this issue, and much more.

But some things are certain today: the election in November matters much more than it did 48 hours ago and, regardless whether Roberts wagered as I set out above, I hope it pays off in a big way.

Because we need the Chief Justice to stand strong against liberal pressure and intimidation while also standing firm for judicial restraint and limited federal government power.

We need the Chief Justice to be with us on the major issues that will inevitably confront the Court in the years and decades to come.

We need Mitt Romney to be elected in 2012 to usher out this thrown-together attempt at health care reform that has been revealed as one of the largest tax increases in history and usher in authentic, incremental reform.

We need Roberts’ bets to pay off… in a big, big way.

3) The Dissent’s Closing Thoughts

If you’re still reading, I’m going to end my discussion with how the jointly filed dissent (Kennedy, Scalia, Thomas, and Alito) concluded their argument. Of all the reading yesterday, it felt as if it was the most important and the best argued. Regardless of the extent to which The Roberts Wager pays off, this argument is the warning shot that will hopefully be heard by judges, justices, students, politicians, and voters for years to come.  It is the argument that must be listened to and held to in order for our nation to continue to be the greatest nation in the world. I will leave you with their words, not mine. God Bless America!

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.

The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.” 


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