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On the Roberts Opinion in NFIB

Tam laments that Chief Justice Roberts doesn’t seem to understand the role of the courts in being a check against excesses of democracy. I believe the NFIB opinion was unequivocally a loss for freedom, and created an unnecessary expansion of federal power through the power to tax. But I do not believe it was a disastrous loss, because the opinion places greater restraint on federal power in other areas, and does not specifically overturn many of the limitations placed on Congress’ power to tax, which is not unlimited.

A lot of folks on blogs have been suggesting that whether the power is reached through taxing power or commerce power is six one way half-dozen the other. I don’t agree that’s the case. The taxing power is more limited than if Congress could exercise one of its enumerated powers to enact a mandate. First, The Roberts Opinion did not directly overturn Bailey v. Drexel Furniture Co. which held the Child Labor Tax unconstitutional because it was a penalty masquerading as a tax. Robert went on at some length to distinguish the ACA’s mandate as from the one in Drexel Furniture. Some of his reasoning was painfully weak, but by making the distinction, it keeps in place a limit on how far Congress could go before a tax is considered a penalty in disguise. The ACA exempts people who pay no income taxes, and then taxes at a base rate of 700 dollars, continuing at 2.5 percent of income up to a maximum of the cost of a plan purchased from one of the health exchanges. This was enough for Roberts to distinguish it from Drexel Furniture, where the penalty was 10% of net profits. Roberts considered the ACA “tax” was not punitive in nature. Because Roberts maintained limits to this new power, it leaves open the path for future challenges should Congress decide to exercise its taxing power similarly in the future. If this act was ruled a valid exercise of Congress’ power under the Commerce Clause, or Necessary and Proper Clause, there would be no limit; Congress could impose burdensome, punitive fines, and/or impose jail sentences.

Because of the way the case was decided, I think it’s a a stretch to put Roberts in the same category as the left-wing of the court, or to suggest he’s turned liberal, or is as liberal as anyone Obama would nominate. Obama’s and Clinton’s court nominees, if they had gotten their way, would have abolished the entire idea that Congress’ powers are limited. Roberts has been willing to strike down legislative enactments where it’s been in clear violation of Constitutional standards, and has indicated a willingness to go along with restricting federal power in several areas that aren’t trivial, including restraining federal and state power to regulate guns. While I am greatly disappointed in his expansion of the federal taxing power, I am quite pleased he agreed to expand coercion doctrine, meaning the federal government does not have plenary power to blackmail the states into doing its bidding by threatening withdrawal of funding. This isn’t a small deal.

While I don’t think the NFIB decision was a complete disaster for liberty, we still need to be watchful. There’s a strong current in conservative legal thought that supports the concept of judicial restraint. Conservative justices always seem torn between judicial minimalism, originalism, and other competing ideas in conservative legal thought which leads them to sometimes wander off the reservation. I would argue we need nominees who are committed to the destruction of the New Deal, and to the restoration of our federal government as one of limited and enumerated powers — justices who won’t hesitate to strike down enactments of Congress in order to limit its power. I do expect the Court to save us from ourselves. That’s the body’s purpose. Our founders were not the proponents of democratic rule that many on both the left and right of legal thought are today, and I think they were correct in their skepticism of it. It’s a shame our political class has seemingly lost that healthy skepticism.

4 Responses to “On the Roberts Opinion in NFIB

  1. Tam says:

    As Shootin’ Buddy is fond of phrasing it, “Our appointees always go bad; theirs never do”…

    • Sebastian says:

      There’s a few strains in the GOP that hate the idea of limited government. SoCos hate it, because it get in the way of their social agenda, and the RINOs hate it because they hate limited government. Snarlen Arlen, when he was running Judiciary, was incredulous at the idea that Congress’ (re: his) power could be limited. The National Greatness conservatives don’t like the idea of being able to lock up people indefinitely without a trial. So most every group on the right digs them some government, so you get Justices that will wander off the reservation every once in a while, like Roberts, Kennedy, or O’Conner, or wander off completely, like Souter.

      Interesting thought: O’Conner may have been wishy washy, but she was a committed federalist. Since it seems Justice Kennedy had a rather particular energy for tossing ACA, I think it’s safe to say had this been decided before the Bush nominees, the Court would have struck down ACA.

      Of course, then we would have lost Heller and McDonald :)

    • Overthetop says:

      Their nominees aren’t bound by the “letter of the law,” because the constitution is a living and breathing document that doesn’t guarantee anything really- so they never go “bad.” They start out “bad,” so there isn’t anywhere else to go. I often think it would be more fun being a Liberal Justice when I am reading my law school cases. You get to determine what outcome you personally prefer, then go hunting through the “law” until you find something to support it. If nothing seems immediately appealing, then you default to the Commerce Clause or the 5th/14th, and…presto!…you have your justification. Those boring strict constituionalists are constrained to what the law actually says, and might have to vote for outcomes they don’t like. Boring!

  2. FightinBluHen51 says:

    The problem here is, that there is no binding “opinion of the court” on the Commerce Clause and there was no neutering thereof.

    As Mark Levin explained last Friday, Chief Justice Roberts was no joined on his opinion by any other justice in the reasoning behind his views on the commerce clause. Nor did he specifically write “in the opinion of the court.” Therefore, nothing is bound by this court with regards to the commerce clause.

    All the Neo-Con RINOs shouting that we have obtained a re-limiting based on this part of the Constitution fail to realize all we got was maybe some dicta by one justice (not even the binding precedent). Further, his play to save the ACA created a whole new power out of whole cloth by the government to tax anything it wants, even inaction! Mao and Stalin would be impressed!

    I’ve seen people through examples around like the clerk at the 7-11 asking you if you want gum with your purchase and when you refuse you’re told that choice will be 2.15. Personally, I like the you decide not to by bacon because your doctor has told you it will impact your health (and thus your future care). Then we turn around and have congress tell us that if we don’t buy enough bacon to support the pig farmers, they will impose a tax on us.

    This truly is an ugly ruling.

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