Chief Justice Roberts Invites November Referendum on Federal Health Care Law
Jason Mercier, Director, Center for Government Reform, July, 2012
"The Affordable Care Act is constitutional in part and unconstitutional in part."
With these words, the Chief Justice of the U.S. Supreme Court John Roberts, in a 5-4 decision, removed the policy fate of the federal health care law from the hands of judges and placed it squarely in the lap of voters this fall to decide what happens next.
Depending on your perspective, Roberts’ decision was either an example of judicial restraint or, as the four Supreme Court Justices that dissented wrote, "carries verbal wizardry too far, deep into the forbidden land of the sophists."
Either way, the Chief Justice repeatedly made it clear that the Court was not passing judgment on the "wisdom or fairness" of the federal health care law or if it "embodies sound policies."
Roberts explained, "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
Perhaps it should be no surprise that a vast law that has deeply divided the country and barely passed Congress on a party-line vote would be decided by just one vote in a 5-4 opinion by the Supreme Court.
It is also somewhat fitting for a law, that as the then-Speaker of the House Nancy Pelosi said Congress "[has] to pass the bill so you can find out what’s in it, away from the fog of controversy," would end up containing a tax on Americans that don’t buy a product the government wants them to that no one knew was in the bill until the Supreme Court ruled on it.
This despite the promises made by President Obama proclaiming to the public that he "absolutely reject that notion" that the proposed health insurance mandate was a tax. Despite these public statements, the President did in fact argue to the Court that the mandate was a tax (after first telling the Court it wasn’t on the first day of arguments). This two-faced defense of the law proved to be its saving grace as otherwise the Court would have tossed the individual mandate and the law as a violation of the commerce clause.
After winning the legal debate by arguing the health insurance mandate was instead a tax, the President is back to telling the American people it isn’t a tax but a penalty. The White House proclaimed after the Court’s 5-4 ruling, "It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right?"
The one choice we do have is to decide what happens next.
Some would have the Court’s decision be the last word on the policies of the federal health care law. While it is in the legal sense, to paraphrase Winston Churchill, the Court’s decision is not the end. It is not even the beginning of the end, but it is, perhaps, the end of the beginning of the policy debate.
Placing the ultimate decision on the fate of the federal health care law back in the hands of voters, Chief Justice Roberts wrote, "The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people."
This November, we the people, will have the opportunity to either affirm the policies of the federal health care law or pursue a different direction.
Jason Mercier is director of the Center for Government Reform at Washington Policy Center. Washington Policy Center's 10th Annual Health Care Conference will be focused on the next steps for state policymakers on implementation of the Affordable Care Act. The event will be held from 7:30 a.m. to 1:30 p.m. on July 10th at the SeaTac DoubleTree.