l****z
发帖数: 29846 | 1 He’s the custodian of the Court’s reputation.
By Charles Krauthammer
It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the
liberal wing of the Supreme Court and upholds the constitutionality of
Obamacare. How? By pulling off one of the great constitutional finesses of
all time. He managed to uphold the central conservative argument against
Obamacare, while at the same time finding a narrow definitional dodge to
uphold the law — and thus prevented the Court from being seen as having
overturned, presumably on political grounds, the signature legislation of
this administration.
Why did he do it? Because he carries two identities. Jurisprudentially, he
is a constitutional conservative. Institutionally, he is chief justice and
sees himself as uniquely entrusted with the custodianship of the Court’s
legitimacy, reputation, and stature.
As a conservative, he is as appalled as his conservative colleagues by the
administration’s central argument that Obamacare’s individual mandate is a
proper exercise of its authority to regulate commerce.
That makes congressional power effectively unlimited. Mr. Jones is not a
purchaser of health insurance. Mr. Jones has therefore manifestly not
entered into any commerce. Yet Congress tells him he must buy health
insurance — on the grounds that it is regulating commerce. If government
can do that under the Commerce Clause, what can it not do?
“The Framers . . . gave Congress the power to regulate commerce, not to
compel it,” writes Roberts. Otherwise you “undermine the principle that
the Federal Government is a government of limited and enumerated powers.”
That’s Roberts, philosophical conservative. But he lives in uneasy
coexistence with Roberts, custodian of the Court, acutely aware that the
judiciary’s arrogation of power has eroded the esteem in which it was once
held. Most of this arrogation occurred under the liberal Warren and Burger
Courts, most egregiously with Roe v. Wade, which willfully struck down the
duly passed abortion laws of 46 states. The result has been four decades of
popular protest and resistance to an act of judicial arrogance that, as
Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the
issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and
rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It
was seen by many (principally, of course, on the left) as a political act
disguised as jurisprudence and designed to alter the course of the single
most consequential political act of a democracy — the election of a
president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the
reputation of the Court. Roberts seems determined that there be no
recurrence with Obamacare. Hence his straining in his Obamacare ruling to
avoid a similar result — a 5–4 decision split along ideological lines that
might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is
clearly the most significant piece of social legislation in decades. Roberts
’s concern was that the Court do everything it could to avoid being seen,
rightly or wrongly, as high-handedly overturning sweeping legislation passed
by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other
institutional? Assign yourself the task of writing the majority opinion.
Find the ultimate finesse that manages to uphold the law, but only on the
most narrow of grounds — interpreting the individual mandate as merely a
tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan Court
overturned duly passed legislation. And yet at the same time the Commerce
Clause is reined in. By denying that it could justify the imposition of an
individual mandate, Roberts draws the line against the inexorable decades-
old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce
Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax”
argument is a dodge, and a flimsy one at that. (The “tax” is obviously
punitive, regulatory, and intended to compel.) Perhaps that’s not how
Roberts would have ruled had he been just an associate justice, and not the
chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be
overturned. The same way it was passed — elect a new president and a new
Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I
won’t make it easy for you.
— Charles Krauthammer is a nationally syndicated columnist. © 2012 the
Washington Post Writers Group. | P*********0
发帖数: 4321 | 2 Cuz conservatives wanted it from the very beginning?
the
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【在 l****z 的大作中提到】
: He’s the custodian of the Court’s reputation.
: By Charles Krauthammer
: It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the
: liberal wing of the Supreme Court and upholds the constitutionality of
: Obamacare. How? By pulling off one of the great constitutional finesses of
: all time. He managed to uphold the central conservative argument against
: Obamacare, while at the same time finding a narrow definitional dodge to
: uphold the law — and thus prevented the Court from being seen as having
: overturned, presumably on political grounds, the signature legislation of
: this administration.
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