The proper limits of power
There has been considerable speculation about the true reasons behind Chief Justice John Roberts’ vote on ObamaCare. It has been widely noted that the dissenting opinion refers to something else as “the dissent,” and appears to have been initially written as the Court’s majority opinion.
An extensive CBS News report on Sunday was entitled “Roberts Switched Views to Uphold Health Care Law” assembles a variety of evidence, much of it from anonymous sources within the Supreme Court apparatus, to buttress its point, including a remarkable assertion that Justice Anthony “Swing Vote” Kennedy “led the effort to try to bring Roberts back into the fold.”
It has been suggested that Roberts decided, at some point late in the game, that ObamaCare must be upheld, and reasoned backwards from that desired goal to produce his shoddy legal opinion. Theories for why he did this range from hubris, to intimidation by Democrats and their media allies, to excessive deference to Congressional will.
Roberts himself offered this tidbit of explanation in his decision: “It is not our job to protect the people from the consequences of their political choices.”
On the contrary, that is among the primary purposes of the Supreme Court. It is supposedly insulated from the surging tides of political opinion for this very reason. Lifetime tenure after confirmation makes our highest court a plateau uniquely inaccessible to American voters. In return, the Court is supposed to judge the actual text of the laws placed before it, not become a mini-legislature that helpfully rewrites and upgrades bad laws to drag them over Constitutional hurdles, as Roberts did.
While it has long been thought customary for the Supreme Court to show a certain degree of respect for Congress, and handle the products of the legislative branch with care, it essentially inverts the purpose of the Court to assert that it should rubber-stamp unconstitutional laws because the political cost of striking them down is too high, for either the justices themselves or the government in general.
One of the arguments made by Democrats while they were (apparently successfully) laboring to intimidate the Court was that ObamaCare is so huge that striking it down would unleash pandemonium. This amounts to the assertion that really big laws are too much for the Supreme Court to handle. A popular slogan says “go big, or go home.” Small infractions against the Constitution can be stopped, but if the executive and legislative branches “go big,” the judicial branch should just “go home?” Nonsense. The Founders would have greeted this argument with outrage. They did not believe they were setting up flimsy barriers against half-hearted tyranny, easily hurdled by a truly ambitious ruling class.
ObamaCare represents one more chapter in the American republic’s long, messy quest to determine the proper limits of power. The very existence of the Constitution asserts that power cannot be limited solely by political passions and transitory popularity. The Constitution is a list of things the government absolutely cannot do… no matter how ambitious the President might be, how compassionate and wise Congress views itself, or even how popular an unconstitutional agenda might be with the public.
The American people have a legal mechanism for amending the Constitution, but the Supreme Court has the vital mission of ensuring that lesser parliamentary methods are not employed to over-ride the Constitution. If Americans really wanted to grant Congress the power to throw penalties at people who choose not to participate in certain forms of commerce, they could amend the Constitution… and while they were at it, they could craft such an amendment to specifically limit the “individual mandate” power to health care.
We know that pure democracy is not a proper limit to power, for a majority could easily vote to enslave the minority if that were so. We also understand that representation is not a sufficient limit, because tyrannical ambition cannot be held in check by the vague fear of losing a vote at some future date. An excessively powerful ruling class gains immense resources for purchasing the votes it needs to survive.
Even if political survival proves impossible, there are plenty of brass rings that might prove to be worth the sacrifice of individual careers, if future ballot-box consequences are the only limit placed upon power. Some of the Democrats who voted for ObamaCare explicitly accepted that trade – they knew they might have great difficulty securing re-election, but were convinced the power gained by pushing this new law through this Congress would be worth the loss of some seats in the next one. Their judgment may yet be proven correct. And in any event, the life of a defeated legislator with a long political resume is hardly arduous. No one bounced out of Congress because they voted for ObamaCare is living in poverty.
The proper limits of power must be defined through enduring laws, which the government cannot easily dismiss with an exercise of transitory power. Our mountain of national debt provides eloquent testimony that ballots and referenda grant no voice to generations yet unborn, who can be easily crushed beneath the weight of obligations placed upon them today. The future is too easily seen as a credit card that always has a little more space left on it, to cover whatever today’s voters feel they absolutely must have.
Look at how many provisions of ObamaCare were set to activate years, and elections, after its passage. Consider all the grim consequences that may yet flow from Roberts’ radical expansion of congressional tax powers. No longer is it necessary to portray a “tax” as a method of generating revenue, levied against a specific income-creating activity. Taxes are now an instrument for securing compliance, assessed against anyone who fails to engage in activity Congress decides would be beneficial, either for the individual or society at large.
ObamaCare is an enormous seizure of power that will reach far into the future, if it’s not repealed in the next election. It will hang heavy over people who weren’t even alive when it was passed, stripping of them of rights and choices they never had a chance to evaluate for themselves. The Supreme Court is supposed to protect us from such usurpations, no matter how many votes the usurpers drew three years ago.