After Taking The Bait, The Chief Justice Prepares To Switch On The ACA
By: JONATHAN TURLEY
S E E D E D C O N T E N T
Yesterday's oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (that suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.
Eight years ago, Roberts sided with the conservative justices that requiring individuals to buy insurance was a flagrant violation of federalism guarantees, a view I shared. But in what read like a last minute addition, he voted with the four liberal justices in declaring that none of that matters because he viewed the individual mandate as a tax. It was a surprising turn, since both sides had denied that this was a tax. But by declaring the individual mandate an exercise of the taxing authority of Congress, Roberts saved the law. He insisted the individual mandate was the thumping heart of ObamaCare, which could not survive without its tax revenue from the healthy young citizens who would pay more into the system than they took out. Roberts wrote that "the individual mandate was Congress's solution" to the existential problems associated with a national health care system. Likewise, the liberal justices joined Roberts in saying that, without the individual mandate, the other parts of the ACA "alone will not work."
His decision, refashioning the mandate as a tax, appeared artificial and opportunistic to many of us. It also sowed the seeds of its own destruction by not just resting the survival of ObamaCare on the existence of the tax but by insisting that the law could not survive without it. Congress called his bluff by zeroing out the tax, which was the very thing that Roberts had said was needed to sustain ObamaCare as a constitutional matter.
In the oral argument in 2012, Roberts explored whether Congress to force Americans to buy broccoli to make themselves healthier. While Roberts ultimately ruled that the individual mandate (and broccoli compulsion) was a violation of federalism, he made all of that discussion moot by declaring the individual mandate a tax.
Now, the supporters of the ACA are back and insisting that the individual mandate was never really the essential element that they claimed to the Court. The painful position of Roberts was evident in oral argument:
"Eight years ago, those defending the mandate emphasized that it was the key to the whole act. Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of healthcare. But now the representation is that, oh, no, everything's fine without it. Why the bait and switch? . . . We spent all that time talking about broccoli for nothing?"
Well, it was not for nothing. It was a bait and switch. What is interesting is that Roberts took the bait and now appears ready to do his own switch. He suggested that he would again save the ACA through severance but do so by recognizing that the basis of his earlier opinion is now invalid. Indeed, Roberts himself could find the individual mandate unconstitutional.
So, Roberts could create a curious precedent: he saved the ACA in 2012 by declaring the individual mandate essential to the survival of Act and then may save the ACA again in 2020 by declaring that the individual mandate is not essential to the survival of the Act. If that seems confusing, welcome to the world of Chief Justice Roberts on the ACA.
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Yes, Roberts does dither.
If you wish to have an automaton as justice: Just ask Roberts to 'apply.'
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John Roberts is the opposite of that.
With pivotal votes, Chief Justice John Roberts confounds conservatives and liberals
Respond properly to @1 (not me).
I think I'll respond to whomever I want. Thanks.
Mm-hm-mmm. I see now. Now, that speaks volumes. . . .
Yep, I believe in liberty. Some people hate that because it means they can't force me to think or act in way that they want. Too bad for them!
WHOOSH!
So many words. . . just to dodge the matter of responding to the original statement. I have not in the past or do not in the present consider CJ Roberts an automaton. My @1.1 remark makes more sense in context of the original @1 commenter, I think.
I dodge nothing. I'm just not interested. Why do you care? If you want to respond, no one is stopping. Why do you care what I think about what someone else said?
The point was that your comment made no sense within context of previous comments...
Another day, another conspiracy used by Democrats to scare their voters.
this will be forgotten like all the others when the judgment is handed down
I always check when a quote, especially one for a Supreme Court Justice, is truncated. There is rarely a 'good' reason for it...
The answer:
Reads like a very cogent reply. What say you Vic?
FYI here are some other comments made during the hearing:
So I have to wonder why Turley chose to highlight Roberts' statement and try to hang the outcome on him. Ever were Roberts to vote with the 3 'liberal' Justices, there are 5 conservatives left in the majority. It doesn't look to me like Kavanaugh or Alito are convinced either...
They need to throw this mess out and start over. It might take a Constitutional amendment.
This is confusing by Jonathan Turley, and I have questions: