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Did Roberts Pull a Fast One?
Some liberals were making a 24-hour pivot from praising Roberts' statesmanship to wondering whether the victory for Obama and congressional Democrats was delivered in a Trojan horse.Did anyone notice Karl Rove sneaking into the Court? In the opinion that stirred this week's controversy, Roberts wrote that it was the duty of the court to avoid rejecting an act of Congress if there is a plausible reason for saving it. "It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so," Roberts wrote. So he rejected the government's argument that requiring most Americans to purchase health insurance or pay a penalty was justified under the Constitution's commerce clause, which gives Congress the power to regulate interstate commerce. But, joined by the court's four liberals, he said the penalty operated as a tax, and thus was proper under the taxing clause. Followed by some wild guessing, suggesting Roberts changed at the last minute, looking for clues amongst the differing opinions. There is nothing improper about a justice changing his or her mind on a case before the decision is delivered. But the insinuation was that Roberts may have been motivated by a desire to spare recriminations from the image of the court's five justices appointed by Republican presidents overturning a landmark bill passed by congressional Democrats and signed by Obama. A silver lining - his decision made it look much less like a political one. Others thought it unlikely that Roberts had changed his mind. "There are some loose ends in the opinions, to be sure, but it might just be because they were pressed for time," George Washington University law professor Orin Kerr wrote on the Volokh Conspiracy, a Web site on legal issues where much of the speculation found a home. And it was also clear during the first hour of the lengthy oral arguments that Roberts was exploring the theory he later adopted: that the penalty served as a way to satisfy the government's requirement, making the mandate less of a command. My way or pay is better than my way or die. Stanford University constitutional law professor Pamela Karlan said liberals should see the decision as strategic. "Is that man clever or what?" she said, adding that Roberts learned a lesson from his predecessor and mentor William H. Rehnquist about when to look for compromise. "He knows he's going to be on the court for years." While the decision has the immediate effect of saving the health-care law, Karlan said, the opinion contained what could be important and long-lasting principles. The strict reading of the commerce clause is something conservatives have wanted for years. And the court said the law's attempt to force states to expand Medicaid rolls by threatening to withhold federal funds was improperly coercive. "That truly breaks new ground," said Richard Fallon, a Harvard law professor. "It's the first time since the 1930s that the Supreme Court has invalidated a federal spending statute that gives money to states and attaches strings. A number of other federal spending programs that attach strings will now be attacked as coercive." Job security for the Supremes! Posted by: Bobby 2012-06-30 |
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