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Thursday, June 28th, 2012

Baton Rouge, Louisiana


Who would have thought it? Chief Justice John Roberts, who leads the Republican bastion of conservative jurisprudence on the U.S. Supreme Court joined four Democratic justices in upholding the Obamacare health initiatives. There was uncertainty by both supporters and opponents as to what position Justice Anthony Kennedy would take. But Roberts? A strong conservative? No way would he uphold Obamacare!

For months, the focus had been on Justice Anthony Kennedy, who was pegged as the swing vote. Most bets were on a 5-4 decision with Kennedy being in the cat bird’s seat of deciding whether the President’s plan would rise or fall. Time Magazine featured Kennedy on a recent cover and numerous news articles analyzed a whole slew of decisions, tying to glean some indication as to how he would vote.

When a few weeks ago the announcement was made that Roberts would write the majority opinion, Obamacare supporters began to panic. The Chief Justice, who time and time again had joined other conservative justices in shaping so many contested laws? The Justice who voted to uphold the Citizens United case and position himself on a host of issues that caused Democrats to paint him as being in lockstep with Republican stewards and conservative ideology? How could he go so far outside the Republican corral?

Republicans in Washington were sent into a state of shock and puzzled over Roberts’ decision. After all, he was their fair haired boy, and many felt betrayed by his decision. In some cases, Republican reaction was off the wall and way overboard. House GOP members met shortly after the decision came down in a closed door meeting, and Indiana Congressman Mike Spence, who is running for Governor, compared the Court’s decision to the 9/11 terrorist attacks. Maybe a bit of an overreach? Then he apologized, telling Politico news that: “My remarks at the Republican Conference following the Supreme Court decision were thoughtless. I certainly did not intend to minimize any tragedy our nation has faced and I apologize.”

Republican GOP candidate Mitt Romney immediately called a press conference to lambast the Court’s decision. “What the court did today was say that Obamacare does not violate the Constitution. What they did not do was say that Obamacare is good law or that it’s good policy. Obamacare was bad policy yesterday. It’s bad policy today. Obamacare was bad law yesterday. It’s bad law today.” Remember, now, that the basic precepts of Obamacare were tailored after the Massachusetts plan, proposed by none other than Mitt Romney when he was Governor.

The ironies abound. When John Roberts was up for Senate confirmation after initially being nominated for the high court, two of his most vicious critics, both who strongly opposed his nomination by President Bush, were then Senators Joe Biden and Barrack Obama. If Obama is reelected, he should hold a White House dinner in Roberts honor, or at least give him a high five.
So just where was the Chief Justice coming from in making his monumental decision? Roberts showed respect for the three branches of government, and took the conservative view that the court should not engage in judicial activism. That’s been one of the knocks on the court’s majority going back to Bush v. Gore. The Roberts opinion reflects the view that the courts should assume that laws passed by Congress are constitutional unless there is persuasive evidence to the contrary.

The opinion also reflects Roberts’ view that just because the law sets out bad public policy, that in itself does not make it unconstitutional. There is a remedy for those who oppose Obamacare — elect more responsive members of congress when the election rolls around.

The main thrust of any legal basis for Obamacare was a broad interpretation of the U.S. Constitution’s commerce clause. Since elements of the healthcare law crossed state lines, was that enough to allow for federal jurisdiction? No said the opponents. Because the law mandated an action when an individual wanted to do nothing. One was forced to buy healthcare or face a penalty. It should not be constitutional for the commerce clause to apply when an individual decides to abstain or take no action. There were no crossing state lines, so no application of the commerce clause.

The Roberts opinion agreed that the commerce clause could not give jurisdiction for congress to mandate health coverage. Such a mandate would be unconstitutional. But then the decision shifted into the penalty itself, and called it a tax. Congress might not have the authority to mandate individual actions, but it does have widespread authority under the constitution to levy a tax. Lawyers, news commentators, and court watchers let this creative argument slip by them. Republicans never even considered that such an approach would take place and failed to scrutinize and rebut the tax issue. It seems to sail under the judicial radar.

So just where was the Chief Justice coming from in his decision? Was he looking down the road at how history will view his leadership on the court? There is little doubt that this decision indicates a polar shift in the court’s direction. Roberts would argue that his decision merely applies constitutional principles to an interpretation that the taxing authority of congress is legal.

But his written opinion does much more for him personally. Many will disagree with his opinion. But agree or not, Chief Justice Roberts has taken a major step towards building a legacy of vision and leadership that could last for years to come.


“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” Chief Justice John Roberts

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers throughout the nation and on websites worldwide. You can read all his past columns and see continuing updates at www.jimbrownla.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownla.com.

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