The Chief Justice Done Good

Chief Justice John Roberts has handed a remarkable victory to American conservatives by threading the judicial needle with perfect precision.  The initial disappointment collectively felt by Americans who had hoped for a Supreme Court ruling that would overturn Obamacare soon will be replaced, upon further reflection, by the excitement that will come with a fuller appreciation of what the Chief Justice has wrought.

First, almost completely unnoticed, the Chief Justice voted with his four conservative colleagues in drawing an unprecedented red line against Washington wielding the Constitution's Commerce Clause in the future to justify federal intrusion into the personal lives of Americans.  This decision will restrict American Presidents and future Congresses for a generation and more.

Until Thursday's decision, for more than 70 years, virtually every leading Supreme Court decision on the reach of the Commerce Clause has sided with federal intrusion.  Although there have been isolated exceptions -- e.g., United States v. Lopez, 514 U.S. 549 (1995) (limiting federal regulation regarding carrying guns near schools) and United States v. Morrison, 529 U.S. 598 (2000) (limiting power of the federal government to expand rights of women to sue attackers) -- the leading cases on the Commerce Clause, often relying on precedents like Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress could prevent a person from growing wheat for his own personal consumption on his own private land), have held that the federal government can force Americans to do or not do, to buy or not buy, virtually anything if couched as an act to facilitate or regulate interstate commerce.  Wickard "always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence." (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, at 3.)

It was this very line of Wickard-consistent Supreme Court opinions that served as the basis for a long line of lower federal courts, both district courts and federal appeals courts, choosing to uphold ObamaCare as that bill was tested through the judiciary.  However, with Chief Justice Roberts almost surreptitiously joining with Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare is barred by the federal Commerce Clause, a new era has begun in Commerce Clause jurisprudence. 

Every liberal citation to Wickard will be countered by a conservative citing to Chief Justice Roberts's opinion: "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.  The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)

There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want.  An American cannot be compelled by federal mandate to eat or even to buy a proverbial stalk of broccoli. As a kosher consumer, the federal government cannot wield that clause to impose on me an obligation to purchase non-kosher food supplements. The rules guiding lower-court wrestling matches over federal power to invade Americans' private lives now have been reset remarkably by Chief Justice Roberts.  Few today notice what he has done.  Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington's intrusions.

It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news.  However, attorneys and certainly law professors get it.  We know what happened on Thursday.  It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore.  Only the trained insiders know what that rumbling will cause in the future.  This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government's unbridled abuse of the Constitution's Commerce Clause.  And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise.  And that is fine.

Secondly, Chief Justice Roberts has punted the whole ninety yards, so to speak, with the expertise of a professional football kicker whose team has the ball on its own 8-yard-line, then punts ninety yards, pinning the other team on their own two-yard-line.  Had Chief Justice Roberts sided completely with his four conservative colleagues, Obamacare now would be off the political table for the November elections.  Obama would be campaigning and mobilizing his troops' passions, arguing an urgent need to reconfigure the Court.  Romney, by contrast, would be trying to mobilize passion for a lackluster campaign that is impelled legitimately by one crying urgency: jobs and the economy.  However, Romney is not gifted at bringing people to their feet, not for applauding and possibly not for voting.  He is competent, perhaps excellent, maybe even extraordinary -- but his blandness does not generate passion.

Jobs and the economy are critical issues, but tricky ones to explain.  The federal government effectively shades statistics by hiding the full destructive impact of Obama's economic programs.  People who cannot find work at the compensation level they need and for which they are qualified -- an enormous population subset we call the "under-compensated" -- nevertheless are counted as "employed" when they settle for jobs below their previous attained levels.  Meanwhile, when others give up hope and stop looking for work altogether, resigning themselves to failure and long-term unemployment, they are deemed by statisticians to have removed themselves from the work force, so are not counted among the unemployed.  We the more sophisticated observers of the political process understand these statistical anomalies.  We understand that statistics declaring American unemployment at 8.2% really are closer to 12% and even 14% when we factor-in the plight of the underemployed and those who have given up hope.

Unlike the unemployment issue, where statistics are obfuscated, Obamacare is a signature campaign issue.  It is clear, comprehensible, simple -- and despised.  It galvanized, even helped create, the Tea Party.  Passionate opposition against the law led to a convulsive November 2010 election that resulted in fabulous Republican gains and the worst "shellacking" experienced by any political party in the modern era.  Two years have passed since 2010, and ObamaCare was about to be removed as a campaign issue in November. 

Instead, even as he cast a powerful vote to rein in the Commerce Clause as our Founding Fathers intended for it to be applied against federal intrusiveness, Chief Justice Roberts returned Obamacare front-and-center back into the November elections debate.  Defining it for what it really is -- a new, enormous federal tax on at least four million Americans (Slip op. at 37) -- the Chief Justice has lobbed a fat hanging curveball for conservatives to clobber.  The ObamaCare tax does not apply to those who presently are untaxed, and it will not apply to the more wealthy, who will be excused because they carry health insurance anyway. Rather, the President who promised no new taxes against the middle class conclusively has been "outed" by the Chief Justice as having imposed the biggest tax on middle-class Americans in a generation. 

Third, the Chief Justice has shifted the spotlight back onto Congress, primarily focusing its glare on the Democrat-run U.S. Senate, only four months before the elections. Republicans rapidly will beat down ObamaCare in the House like a piñata at a children's party.  It is an easy target.  It is excessive and intrusive.  It is financially devastating, will cause employers to drop health coverage for their employees, and will force millions to lose their preferred doctors and instead to settle on government-supplied alternatives.  Seniors will find that $500 million in coverage has been sliced out of their Medicare.  Employers will continue resisting expanding their work forces and reviving the flagging labor market while the issue remains in flux, assuring stagnating unemployment numbers through November. 

Fourth, the Chief Justice, while permitting the federal government to offer states more money to expand their Medicaid rolls beyond their fiscal capabilities, joined with his four conservative colleagues in banning Washington from penalizing states that turn down the federal inducements to march towards bankruptcy. As a result, the working poor will find that the federal government, while taxing them to buy new health coverage, has been left without a mechanism to compel others to pay for the ObamaCare state insurance exchanges.  So the feds will have to pay for it in non-cooperating states that are more fiscally prudent.  Only more taxes can pay for those costs. 

So Congress has a massive new mess awaiting it, all as voters prepare to vote for a new Congress and for 33 United States Senate seats, 23 now held by Democrats and their two "independent" allies.  House Republicans solidly will vote symbolically to overturn the legislative monstrosity, and they will find endangered House Democrats breaking ranks with their leadership to vote with them.  Senate Democrats facing reelection will be caught in a vise.  Harry Reid will be trying desperately to prevent a vote on ObamaCare repeal from reaching the Senate floor, even as national news coverage focuses on the two national parties' conventions.  Obama's staff may be renting Greek or Roman columns, but the Republicans will be toppling the pillars of the failed Obama Presidency

This is going to be OK, even fun.  Just wait and see.  The Chief Justice done us good.

Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County.  He blogs at

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