Parsing The ObamaCare Decision, Part Four

And so we come to the Opinion itself, the Obamacare Decision that allows something to be both a tax and not a tax at the same time; in his (apparent, supposed) desire to avoid a 5-4 decision that would make the Court seem "partisan," Chief Justice John Roberts parsed words finer than CERN parses atoms, and ended up delivering a 4-4-1 decision that has its cake and eats it, too, deciding that what Congress said matters only when Roberts decides it matters.

Or, to put it as the Syllabus of the opinion -- the part of the opinion not written by the Justices themselves -- puts it:

The Affordable Care Act describes the “[s]hared responsibilitypayment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. ... In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” ...Such an analysis suggests that the shared responsibilitypayment may for constitutional purposes be considered a tax.

 The ObamaCare Decision begins with such Twistifications (the term supposedly used by Thomas Jefferson to describe John Marshall's manner of deciding cases on narrow but far-reaching grounds) and moves into limitations on Congress' power and expansions of the Court's power, all things little marked by commentators and politicians hellbent on proclaiming all kinds of things about the Court, the decision, and the status of American Democracy (TM).

There are 193 pages of words in the Decision; I don't think I'll get to them all today.  But I'll start with Roberts declaring fealty to judicial conservatism and balancing Lochner-era thought with what sounds like the beginning of an opinion upholding States' Rights:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enactthe challenged provisions.

In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries. 

I do not believe that Roberts believes the Court has a "limited" role in policing the boundaries of the government's power; his decision allowing the Court to say what power it is Congress is exercising -- or not, depending on the challenge -- greatly expands the Court's "limited" role.

Roberts then, on only page 9, further limits the powers of the federal government, discussing the average person's view that the limits on the federal government come chiefly from the "Bill of Rights":

These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

Did Roberts actually preserve the Lochner area? Or is he using ObamaCare to set the stage, Marshall-esquely, for a recursion to State primacy in the future?  Consider:

The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives,liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. [That is, the States.]  The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10). 

 The first 10 pages of the opinion, so far, all written by Roberts, read like a Wordsworth Ode to the power of the States, and Roberts in that last quote cited not to a Founding Father but to an Anthony Kennedy opinion from 2011, in which the Court unanimously held that a woman convicted of violating a law passed to help enact a chemical weapons' treaty could challenge the validity of the law on 10th Amendment grounds -- the 10th Amendment being the "tautology" that reserves to the States powers not given the federal government.  In that case, Bond v. United States, the Court unanimously held that the woman could challenge the statute on 10th Amendment grounds (to try to avoid conviction for a crime), but the Court allowed challenges to be brought on broad grounds -- challenging not just whether a statute was enacted by Congress without an authorizing power from the Constitution, but also whether a statute simply violated federalism --

The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State.

That holding ruled that Bond could assert an individual right to federalism -- a right we each possess to keep the federal government limited and hence maximize our freedoms. As Roberts goes on, in Bond:

The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” ... The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

And we each, according to Roberts, and Bond, have a right to that federalism, a right apparently embodied in the Constitution because it is not enumerated anywhere.

I spent the first three parts of this series commenting in large part on how much damage people do when they ascribe to the Court political motivations; the fact that the Obamacare Decision seems not so much concerned with whether ObamaCare is a constitutional law and far more concerned with further defining Roberts' view of America as a country where States are co-equal participants with the federal government -- if not the primary unit of government -- is not a political viewpoint, it is a judicial viewpoint.  Roberts, it looks like, feels that States have been underserved in the modern era, and has been busily adjusting the role of the Court to have the power to decide what powers Congress used to enact laws, while also granting to individuals a variety of rights that are not expressly delineated in the Constitution.