It’s the Structure, Stupid: The Farce of Roberts’ Obamacare Decision
It’s the Super Bowl. It’s third and long, late in the game. The team determines that it must run a pass play, as a running play will not likely gain the long yardage needed. The quarterback completes a long pass, but there’s a flag, as the scrambling quarterback broke the rules by crossing the line of scrimmage before he passed the ball.
The team appeals the call (as is allowed), even though it is patently obvious that the quarterback was 5 yards past the scrimmage line. After 3 tense minutes, the referee up in the booth rules… penalty flag withdrawn! The field referee takes the microphone, announces the withdrawal of the penalty flag, and then gives the reason: “The quarterback could have thrown the ball 2 seconds earlier before he crossed over the scrimmage line. Because he could have done that, with no penalty, we see it as inconsequential that he ran an extra 5 years before he threw the ball. Therefore, the flag is withdrawn; it was a completed pass…”
In 1803, the so-called Midnight Appointees were commissioned in the waning minutes of the Adams administration. The incoming Jefferson administration refused to process the paperwork. The case of Marbury v. Madison resulted. I have no doubt that the politics of the time were fascinating between the outgoing Federalists and the incoming Democrat-Republicans.
The indelible effect of the failure to seat those 58 Midnight Appointees? Zilch.
The effect of the Marbury v. Madison court determining that judicial review was the province of the Supreme Court? Huge.
It was the structure.
So-called “conservative” reaction to Roberts’ Obamacare decision is all over the map. What is “conservative”? Wikipedia evinces the tattered mess -- lists 10 subgroups, many in diametrical opposition to each other. Lately, it seems as if the only meaning is, “Not a socialist.” That’s a bit sad for a movement, but let’s work with that.
Here’s my summary of what connects conservatives (or Center Righties, as I prefer):
“Men tend to behave badly when they have power. The Architects recognized this, and their principal design feature was to hedge against it. This hedge was to diffuse and limit the concentration of government power. In that way, the average Joe has a chance at living a decent life, and his society has a chance at thriving. Absent compelling circumstances, this Structure is worth defending.”
It’s the Structure, Stupid.
Better educated Center Righties can quibble with my words, but we all know that for 200+ years, nothing else on earth has come even remotely close to our Structure in matching the decent life of the average American Joe.
The polar opposite of the Architect’s construct is socialism, which by design requires concentrated coercion. Individuals are commanded by government to do what they otherwise do not wish, towards objectives defined by a ruling elite. Concentrating power is a necessary means; it’s the magic elixir. The average Joe gets to pursue his own vision of happiness only within ever-narrowing spheres that are directed by the centralized authorities.
Thus, the socialist view of government structure (concentration of power) is diametrically opposed to the Architect’s structure (diffusion and limitation of power).
So we can argue what “conservatism” is, or should be. But at its core – with whatever small L or big L “classic liberal” moniker happens to be in vogue -- it would seem to favor sustaining a society’s many institutions and structures, and to diffuse and embed power and influence into a wide lattice of institutions and people.
The Architects’ diffusion of power is achieved both by pitting the federal government against states and by separating federal power into three separate branches. Implicit in all of this is that numerous private sources of power flourish and enrich life. From coffee shops to conglomerates, churches to banks, family tables to school rooms, social clubs to basketball leagues, the private life remains the repository of the stuff of life, and in its diffusion is embedded the average Joe’s ability to pursue his happiness.
When great political squabbles arise in our national house, the Center Rightie should recognize and protect the foundation of the house: Structure. Keep powers diffused. Allow them to concentrate only upon clear and convincing rationale or exigencies.
It’s all about the Structure.
And that’s where Justice Roberts blew it.
Why is the Roberts opinion so bad to a Center Rightie?
- Roberts does severe damage to the Architects’ Structure by abdicating the role of the Supreme Court. He finds that the Obamacare mandate is an unconstitutional grab under the commerce clause. But rather than call the penalty, he creates a bypass device to enable him to dodge the real issue. Answer this: was any clarity provided as to what the constitutional law is, in this area? None.
- Roberts’ opinion, in Marbury v. Madison terms, was to decide to seat half of the 58 Midnight Appointees. That is, Roberts acted as a politician (making compromises), not a jurist (making Structure calls). Like an 1800s politician playing for favors between the Federalists and the Democrat-Republican factions, Roberts abandons Structure in favor of splitting the baby, dreaming up a bypass device to give a political victory to the Democratic party and another smaller consolation victory to the Republican party. Regardless of the political wisdom, or lack thereof, Roberts’ opinion is the equivalent of deciding to seat 29 (or 36 or 18) of the 58 Midnight Appointees. Query whether anyone would praise Marbury v. Madison had that been the outcome.
- Worse, Roberts' bypass device is pure bootstrap logic, which severely damages the Structure – both federalism and separation of powers. He finds that the mandate is unconstitutional under the Commerce Clause but then envisions a hypothetical tax law that could have been -- but specifically and intentionally wasn’t -- enacted, and reasons that since the hypothetical tax law would be constitutional, then the actual – and much different – law that was passed, is therefore constitutional, because it is so similar in outcome to the law that was passed. This relieves the government of the significant burden of having to operate within the enumerated powers and further gives a huge benefit to the government that it is assumed that hypothetical bills will pass Congress and be signed by the President.
- With Obamacare, the Democratic-controlled House, Senate, and Administration determined that they could not pass Obamacare if it were called a tax. So they structured it as something else. But Roberts decided that he will let the government have it both ways: they got the electoral benefit of having NOT structured the mandate as a tax (thus, it passed) but also got the constitutional benefit of the court simply assuming the untrue proposition that Congress could have structured the mandate as a tax (even though the government decided that it would fail, electorally, if it were structured as a tax). As with the football play at the head of this article, it’s a bootstrapped and faulty argument, and it renders the limitations of the Constitution as essentially meaningless.
- Roberts legitimizes the Supreme Court as a political player rather than a referee. The Supreme Court’s constitutional role is that of a referee at a ball game. Its main job is to throw penalty flags as the means of enforcing the game’s rules. It should not matter that the penalty flag might mean an early end to a Cinderella season for an underdog team. It should not matter that rowdy fans will be unhappy to see their home team lose.
- Roberts rejects Marbury v. Madison and abdicates meaningful judicial review of Federalism and Separation of Powers, apparently thinking that elections are a good enough check-and-balance. “Just settle it this November,” seems to be the strategy. In doing so, Roberts seems to ignore that, by nature, Congress doesn’t self-limit its jurisdiction; by nature, it pushes to expand it. No President will scale back any Executive Branch authority; by nature, he tries to expand it. Faced with this, the Court’s province of reviewing Structure (i.e., separation of powers, federalism and constitutionality) are unique to it; it is the Supreme Court’s job to throw the flag on the other branches when they overreach. If the Supreme Court won’t, who will? The apologists for Roberts opine that he wisely leaves it “to the people” to settle these things in an upcoming election. But if that is the case, why do we need Marbury v. Madison at all? Elections, and not judicial review, would be a sufficient check-and-balance.
- Constitutional Structure, like architecture, isn’t sexy or glamorous. There will not be a network reality show entitled, “Dancing with the Big Thinkers of Government Structure.” The Supreme Court is the only player in town to remind and instruct new generations of citizens about why the Structure is all-important. Roberts abdicated.
Did Roberts think Obamacare was best decided by a vote this November? Did he thus punt? Did he think Republicans would be better suited with a strong “it’s a tax” slogan, thus he engineered a deeply cynical bypass to set that up? Were he and his wife too concerned with social standing in the elite cocktail party attorney fraternity? Did he see rough justice in simply splitting the baby? Did he worry how the left would portray his legacy if he were to strike down the signature legislation of the first African-American president?
Frankly, a Center Rightie shouldn’t care. It doesn’t matter if one team has not won a pennant for decades; it doesn’t excuse a referee making bad calls.
Roberts could have been a contender. Instead of an unreadable moshpit of concurrences and dissents, Roberts could have had his court simply and eloquently vindicate Structure and Diffusion, and reminded forgetful citizens of its critical – if not tantamount – effect upon our unprecedented rich lives, our cultural and heritage richness, and safety from enemies, and why (although tarnished) we are the beacon of the world.
Lawyers, law students and judges like to play the “what if” game. So let’s theorize a few cases that the future could hold for us, given the new Roberts Doctrines:
“Although it is not a proper exercise of the Coinage powers for the government to seize 18 year-old males and imprison them without a trial, we note that under the war powers, the government could have drafted the young men into the military, sent them to war, where many would be killed. Therefore, we cannot say that the government’s incarceration of young men, without a trial, is unconstitutional, as the government could have drafted them and ended up in the same place.”
“The government’s eminent domain powers, and the power to establish postal roads, could have been invoked in the taking of the buildings, for governmental purposes. Therefore, the government’s firebombing of every Federalist party office in the nation, although not permitted under the war powers per se, really is not a constitutional issue as far as the taking of the property is concerned.”
“It is axiomatic that the quartering bill could have recited that the government has declared a “war on poverty,” and since the government could easily have added those words to the bill, and since those words would be very similar to a war resolution, we’ll assume that the Congress did that (even though it didn’t), and thus there is no constitutional infirmity with this new law that allows any retired military personnel to quarter himself at any time without notice, in any vacation home.”
“While it is true that the President did not actually sign the bill, it is abundantly clear that he could have signed the bill at any time during the 10 day period, and thus this Court will deem the bill to be a validly passed law signed by the president.”
You get the picture. It’s the Structure, stupid.