Three years ago, Chief Justice John Roberts rewrote the
Patient Protection and Affordable Care Act, a.k.a. Obamacare, to save a
key provision that he believed would otherwise be unconstitutional. Last
week he did it again, this time to make the law work better.
In
both cases, Roberts claimed he was deferring to the legislature, when
he was doing just the opposite: applying the law he thought Congress
should have enacted instead of the one it actually passed. Such
arrogance disguised as modesty undermines the rule of law while
encouraging legislative laziness.
The 2012 case involved Obamacare's "penalty" for anyone who "fails to comply" with the "requirement to maintain minimum essential coverage," which Roberts reframed as a "tax" that hinges on whether you follow the government's guidelines regarding health insurance. He thus transformed a mandate into a suggestion (albeit one you can ignore only at the cost of higher taxes) to avoid further expansion of the power to regulate interstate commerce, which the Supreme Court had already stretched beyond recognition.
There was another option, of course. Roberts could have joined four of his colleagues in concluding that the individual health insurance mandate exceeded the powers the Constitution gives the federal government. But such a ruling would have eliminated a crucial feature of Obamacare, and Roberts was determined not to do that.
The 2012 case involved Obamacare's "penalty" for anyone who "fails to comply" with the "requirement to maintain minimum essential coverage," which Roberts reframed as a "tax" that hinges on whether you follow the government's guidelines regarding health insurance. He thus transformed a mandate into a suggestion (albeit one you can ignore only at the cost of higher taxes) to avoid further expansion of the power to regulate interstate commerce, which the Supreme Court had already stretched beyond recognition.
There was another option, of course. Roberts could have joined four of his colleagues in concluding that the individual health insurance mandate exceeded the powers the Constitution gives the federal government. But such a ruling would have eliminated a crucial feature of Obamacare, and Roberts was determined not to do that.
