By Paul Rosenberg, Senior Editor
From a purely constitutional law perspective, this move was strange on two counts. First, because it depended on a wholly new legal distinction—that between economic activity and inactivity—which existing precedent specifically rejects. (Farmers growing wheat for their own consumption have been found to be subject to the Commerce Clause—Wickard v. Filburn.) Second, because—as Stanford law professor Robert W. Gordon put it, “Roberts didn’t need to say anything about Congress’s commerce power,” since he did find it constitutional under Congress’s taxing power—an argument made by Solicitor General Donald Verrilli during oral arguments on March 27. Verrilli was widely criticized for his performance that day, as he seemed unprepared for the ferocity of conservative attacks on the law. But in the end, his taxing authority argument prevailed, even though it went against the political posture of the President.
Adding one more twist to Roberts’ already quirky, questionable opinion, Northwestern law professor Paul Campos, writing at Salon, argued that Roberts had only changed his mind at the last minute—citing textual evidence in the conservative dissent, including more than a dozen references to Ruth Bader Ginseberg’s opinion as a dissent—which it would have been if Roberts had sided with the conservative dissenters.
If this sounds to you like a state of pervasive confusion, you’re right. But it’s only the beginning. No one really knows what Roberts was doing or why, and whether or not his decision will have much impact on future cases. Some see his decision as refuting claims that he’s a partisan ideologue, others see it as a Machiavellian political move, designed precisely to seem non-ideological, while still advancing the conservative agenda—although opinions differ about how. “He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality,” Ezra Klein wrote for the Washington Post. “It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side,” Klein concludes, quoting conservative Red State blogger Erick Erickson, “John Roberts is playing at a different game…. We’re on poker. He’s on chess.”
Yet, it’s not really clear if Roberts’ ruling will have much impact, given the unique circumstances of the health care law. Others think Roberts is more concerned with other issues. “Next year, Roberts is almost certain to lead majorities to strike down the Voting Rights Act, which will help southern states suppress the votes of poor, black, and Latino voters; and to gut what remains of affirmative action in higher education, among other things,” Gordon pointed out. These are things only the Court can safely do politically, while a Romney presidency could not only undo health care reform, but also further pack the court with extreme conservatives. This would be an even more Machiavellian than Klein imagines. While Roberts’ limitation of the Commerce Clause was itself limited, the same isn’t true of the conservative dissent. Add just one more extreme conservative, and their arguments could overturn the entire New Deal political world—Social Security, Medicare, Medicaid, federal labor and environmental law, etc., etc., etc., again, something that only the Court could safely do politically.
Many people don’t buy this, of course. On the one hand are conservative activists, media figures and politicians, outraged by what they see as a betrayal by Roberts, whom they now regard as a traitor to the conservative cause. On the other hand are those praising Roberts for his statesmanship, and deriding those who have seen him as a conservative ideologue. This latter group seems blissfully unaware that they are helping to make the case for Roberts’ Machiavellian genius.
Why is everyone confused on so many different levels? Why is there so much chaos and uncertainty? No doubt there multiple different reasons, but one of them certainly is that the conservative legal challenge—focused primarily on the individual mandate—was widely seen as frivolous and ridiculous a mere three years ago, a viewpoint that’s still widespread within the constitutional law community today. As Yale law professor Jack Balkin explained at the Atlantic website well before the decision came down, “[I]n three years’ time, the argument that the mandate violates the Constitution has moved from crazy to plausible,” a shift he also characterized as going from “off-the-wall” to “on-the-wall”, which he then explained: “Off-the-wall arguments are those most well-trained lawyers think are clearly wrong; on-the-wall arguments, by contrast, are arguments that are at least plausible, and therefore may become law.”
Such a change isn’t unheard of, Balkin explained. Arguments against racial and gender discrimination are classic examples that went from being “off-the-wall” to “on-the-wall”—but that took generations, not just three years.
So how did such a rapid shift take place? It all turns on “judgments by legal professionals about what is reasonable” which in turn “depends in part on what they think that other people think”. In a highly polarized political climate this only had to happen within the conservative Republican universe, a point that’s only implicit in Balkin’s article. But the actors he cites in the process are conservative intellectuals (“including lawyers and legal academics”), social movements (“the Tea Party”), and establishment politicians/the party system (“Thus, the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.”)
The individual mandate was originally a conservative Republican idea. It originated with the Heritage Foundation. It was the Republican’s counter-plan opposed to Clinton’s employer mandate (employers had to provide health insurance). And, of course, it formed the foundation of RomneyCare in Massachusetts. But as Democrats dropped their own more ambitious plans (including Medicare For All and the public option) and moved to embrace the Republican individual mandate, Republicans fled from it in horror, erasing all memories of their past.
No wonder there’s been so much confusion on so many different levels. If you’re not confused, you’re just not paying attention.