Andrew C. McCarthy identifies one of the key things wrong with John Roberts’ interpretive maneuver.
Chief Justice Roberts & Co. … said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences â€” like tax and penalty â€” and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly.
Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law â€” which it has no constitutional authority to do â€” and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.
In NFIB v Sebelius, Chief Justice Roberts explictly renounces the Supreme Court’s responsibility for strict enforcement of the Constitution on the grounds of deference to the superior expertise of, and the mandate of Heaven possessed by, elected legislators.
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nationâ€™s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions. …
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 Nationâ€™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.
In fact, Roberts asserts the existence of an actual obligation on the part of the Court to use intellectual ingenuity and interpretive creativity to somehow find a theoretical basis on which an unconstitutional piece of legislation, like the Affordable Care Act, can be read differently, in order to finagle it into effect around the Constitution.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See Â§5000A(b). That, according to the Government,means the mandate can be regarded as establishing a conditionâ€”not owning health insuranceâ€”that triggers a taxâ€”the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congressâ€™s constitutional power to tax.
The question is not whether that is the most natural interpretation of the mandate, but only whether it is a â€œfairly possibleâ€ one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, â€œevery reasonable construction must be resorted to, in order to save a statute from unconstitutionality.â€ Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.
After all, according to Roberts, if the American people really dislike what elected legislators have done, they need only overcome the enormous power of incumbency, the vast nation-wide political organizations and interests behind a given measure and the political leaders who passed it, their campaign chests stuffed with hundreds of millions of dollars, all the forces of entropy and inertia, and now-established practices, institutions, and persons dependent on them, and just throw all the rascals out, win the presidency, and majorities of both houses of Congress, and possibly a super-majority in the Senate capable of closing down the filibuster, and the nation can readily thereby correct “the consequences of (past) political choices.”
If one subscribes, it seems to me, to the theory of a system of divided branches of government with checks and balances, adopted by the framers on the basis of the theories of Montesquieu , protecting the American people from the consequences of the electoral choices is precisely what the Supreme Court was created to do.
I would be very interested in reading the particular number of the Federalist Papers in which Madison, Hamilton, or Jay explains that devising sophistical readings of a law in order to allow it to appear to conform to the boundaries of enumerated powers in the Constitution so that all possible fruits of unfortunate electoral decisions may be fully allowed to be experienced by the inhabitants of the American Republic and the ephemeral will of the electorate be unconstrained is really the intended responsibility of highest judicial tribunal.