Original Article - John Roberts, Evil Genius
Chief Justice John G. Roberts is an evil genius. The ruling to uphold the Affordable Care Act is, on its face, a win for President Obama both because the media are saying it is and because it is the signature piece of legislation of his first term. But it may turn out to be a pyrrhic victory, as Roberts accomplished numerous, subtle victories for conservative Republicans.
First, remember that “Obamacare” and the individual mandate started out as a proposal from the conservative Heritage Foundation as a counterproposal to the Clinton administration’s health care plan. The only reasons Republicans are now opposed to it is because Obama proposed it and is getting credit for it. Before it was Obamacare, the program was known as Romneycare in Massachusetts — and if the 2008 election had gone the other way, it might be known as McCaincare today.
Meantime, the survival of the Affordable Care Act eliminates any clamor for real, progressive health care reform, whether universal Medicare or for the creation of a public insurance option. Such programs are anathema to conservatives who want most things privatized — either for ideological reasons or so that their corporate masters can further enrich themselves.
The effect of the law will be to drive millions of people to buy insurance from insurance companies in many cases with federally subsidized funds, lining the pockets of those corporations with the public’s money. Is it any surprise that health care stocks were surging in the wake of the ruling?
And while the decision is a political boost for Obama in the near term, it will also energize the Republican base this fall. Before the decision was announced, House Speaker John Boehner was already saying he would lead the charge to repeal the ACA if any part of it survived. The decision may or may not affect Obama’s reelection chances, but it could well make it harder for Democrats to hold the Senate and take the House. Conversely, if the court had struck down the ACA, it would have energized the Democratic base — and activated many of the 30-40 million people who suddenly saw the promise of affordable health ripped away from them.
But Roberts’ really brilliant move was to uphold the individual mandate under Congress’s taxing authority and explicitly to reject its constitutionality under the commerce clause. As Justice Ruth Bader Ginsburg pointed out in her opinion, there was no reason for Roberts to rule on the commerce clause question, because a majority agreed that the act was a constitutional tax penalty.
Roberts did so regardless to create with the four conservative dissenters a majority view that a health insurance mandate violates the commerce clause. This result is in keeping with Roberts’ conservative view of restricting federal power and leaves him free to vote to strike down progressive federal legislation as unauthorized by the commerce clause.
Moreover, by characterizing the individual mandate as a tax, Roberts hands Republicans a facile campaign cry that Obamacare Means New Taxes — and that Democrats are the party of taxation.
Finally, his decision allows Roberts to falsely paint himself as a neutral arbiter whose principled constitutional interpretations cannot be overridden by his politics. He implies that he thinks the law is a bad idea by adding a note at the end of his decision that the court expresses no opinion on its wisdom.
If the court is not expressing an opinion, there would be no need to say so. But Roberts adds the line to underscore what a principled jurist he is voting that the law is constitutional even though he disapproves of it.
The reality, of course, is that Roberts has permitted the implementation of a conservative health-care regime, energized the Republican base, preserved his ability to vote against liberal congressional measures as violating the commerce clause and aggrandized himself as an apolitical Chief Justice. I tip my hat to his evil genius.