The last few days have seen an almost unbroken litany of conservative voices condemning the Roberts decision in NFIB v. Sebelius for being political, opportunistic, and incoherent. It has been embarrassing enough to be on the wrong side of Mark Steyn, Bill McGurn, and John Fund.
Far more embarrassing, however, have been those praising Roberts with me. They aren't praising him for the correctness of his legal reasoning, folks. They're praising him for being political, opportunistic, and incoherent. This they term "statesmanship." That is what it means to be a "moderate" in America: you believe principles are a handicap, all law is sophistry, and utility is the chief good.
Worst of all has been the fallout from Jan Crawford's CBS News piece revealing the whens and whats of Roberts' decision to uphold the law. The piece itself is lousy with innuendo and speculation as to the whys; I disregard most of it on the grounds that her guessing games are almost entirely unsourced. Even Ms. Crawford's off-the-record sources were unable or unwilling to confirm her "it was all politics" angle. Still, it was deeply discouraging to see this coming from Roberts' staunchest defenders:
Some informed observers outside the court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law.
Man. With friends like these...
Well, I'm with Roberts. His opinion was the correct one in this case. Even if Roberts comes out and says he did it all for politics and didn't believe a word he wrote, I still believe it was correct. Only two things could persuade me otherwise: (1) an argument articulating why the mandate can not be construed as a tax, or (2) an argument articulating why the Court should not construe it as a tax, given that it is fairly possible.
Thomas Sowell got it exactly right, albeit unintentionally:
The legislation didn’t call it a tax, and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the longstanding principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.
Boom. Dr. Sowell has nailed it in one. The rules of judicial construction in a constitutional republic that has no supreme interpretive authority -- that is, in the United States of America -- do not suggest judicial deference when it seems practical, valuable, or congenial to a natural reading of the statute. They demand deference, wherever at all possible, as a matter of law.
Unfortunately, Sowell, unwilling to embrace the unpleasant conclusion the Constitution demands, goes on to spout irrelevancies:
But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious: that Obamacare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?
These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States...
One of the chief justice’s admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story.
Chief Justice Roberts did not deny that Obamacare is an unprecedented extension of federal power. He did not deny that it is bad policy. He did not deny that it would wreck the best system of medical care in the world. If his opinion is any evidence, the Chief believes all those things. None of that makes a whit of difference to him, because his role is not to fix bad law, but to judge cases based on what the law is. In his words, "Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules."
In 2005, we practically canonized the man for professing judicial restraint. Today, Sowell, in a miasma of rhetorical questions and policy claims, accuses Roberts of "betray[ing] his oath to be faithful to the Constitution of the United States" for following his own professed rule. He accuses him of "declaring constitutional what is nowhere authorized in the Constitution" while glibly passing over Roberts' argument that it is authorized in the Constitution by the Taxing and Spending clause:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Sowell mouths the Constitution's praises, but, when faced when a serious constitutional question, begs off answering it so he can spout spout Progressive-era truisms about the Bill of Rights.
Though Sowell is among the worst offenders, he is hardly the only fair-weather friend of judicial restraint among conservatives. Fortunately, there many more in conservatism who are a little more serious, expressing their disappointment as a matter of policy but either politely deferring to the dissenters, stating no opinion on the ruling as law, or, in the best cases, engaging Roberts' arguments head-on. Others simply misunderstand what happened. Take Michael Gerson:
Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.
The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward...
The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”
Mr. Gerson has this backwards, because he, like so many others, has mistaken the role of the judiciary. The court's conservatives, in this case, acted as what Gerson terms "institutionalists". They sought to secure the Court's place in American political life as the guardian of liberty and freedom -- and, perhaps, as the arm of righteous retribution striking down a deceitful president's arrogant "mandate-that's-definitely-not-a-tax-but-is-for-legal-reasons." In so doing, they departed from rigorous adherence to the text of the Constitution and began to look at something else (what, I dare not speculate). For his part, in place of the Constitution, Gerson substitutes legislative hypotheticals and academic studies, which, while valuable policy tools, are remotely connected, at best, to the task of proper judicial construction.
Meanwhile, Chief Justice Roberts looked at the statute in question and the Constitution. He rigorously applied the maxim that what can be constitutional, must be constitutional, which is demanded by the text, structure, and history of the Constitution itself. He drew a conclusion. To borrow a phrase, he made "the meaning of the text primary, whatever the political consequences of applying it."
In nearly a week of furious post-Sebelius commentaries by the conservative commentariat, no one (that I've seen) has made a serious, constitutional case for why Roberts was wrong. More disturbing to me is the fact that virtually nobody has tried. So, for now, I'm standing by my man. Because the Constitution demands judges bend over backwards to construe a statute so that accords with the Constitution, Roberts was right.
While writing this post, however, I have received some email pushback on that last point. To wit, it has been put to me that the maxim of presumptive constitutionality is not in conflict with, but actually is limited by the presumption in favor of the "most natural reading" of a statute. A justice, according to this thinking, is not only not required to bend over backward on behalf of a statute, but is actually forbidden from doing so by the force of the "natural reading" principle. This principle requires (in the words of my interlocutor) only a "good faith effort" to reconcile a statute with the Constitution under its obvious interpretations, not an exhaustive attempt to reconcile it under all possible interpretations before invoking the power of judicial review and rejecting it.
I think this contention misunderstands the origin, nature, and immense responsibility of the "power" of judicial review. The judicial capacity to declare a law unconstitutional and unenforceable is not in the Constitution, which presumes that all laws passed by the Congress and signed by the President are constitutional. The "power" is not a power at all -- it is a compulsion imposed by the logic of the Constitution solely in extreme circumstances when a statute is at utterly irreconcilable variance with our founding law.
But I will have to write more on this at a later date, when I have the time to pull some quotes from Marbury v. Madison, The Federalist, and Joseph Story's Commentaries. I only had time for one tonight, and I just used it -- I stole that "irreconcilable variance" phrase from Federalist #78.
Two more short posts about the health care ruling should be forthcoming in the meantime.