Saturday, June 30, 2012

The Latest 2012 Big Map, The Supreme Era of John Roberts

2012 Presidential Update
Days Until the Election: 129
Projected Popular Vote Total: Obama +3.2% (Obama down 0.3% from last week)
Projected Electoral Vote Total: Obama 332, Romney 206 (Obama +18 from last week)

The national polling was fairly flat last week, but the geographic dynamics shifted slightly but significantly from an electoral standpoint.

Ohio, was has switched back and forth over the past month, switches back to President Obama, as he establishes a narrow lead there.  New England, meanwhile, moves a little closer, with New Hampshire now only a Lean Obama state and Massachusetts shifting down one notch (although not seriously predicted to be competitive.)

Virtually all of the polling included in this update was conducted prior to the Supreme Court's ruling on the Affordable Care Act, which the effect of (whatever that may be) should show up in earnest next week.

John Roberts, Meet Warren Burger
The Supreme Court decision to uphold almost all of the Affordable Care Act, most notably the so-called individual mandate by a 5-4 vote was a minor surprise.  Most observers, myself included, expected the most likely outcome to be a 5-4 vote to strike the mandate, with the outcome that actually happened being the second most likely scenario.

What virtually all of us anticipated was the liberal wing of the court, including Ginsburg, Sotomayor, Kagan and Breyer on one side, with the conservative wing of Thomas, Scalia, Alito and Roberts on the other side and the fifth and deciding vote being cost by moderate Reagan appointee Anthony Kennedy.

But something happened on the way to a Supreme Court ruling.  Kennedy sided with the conservatives, as was narrowly expected.  But Chief Justice John Roberts broke ranks to uphold the individual mandate.

This tells us a few things.  First of all, Roberts has a deep-seated belief in the separation of powers.  There is virtually no question that John Roberts considers the ACA to be poor legislation.  Prior to his time on the bench, Roberts was a member of the steering committee of the right-wing Federalist Society, a libertarian/conservative think tank who are certainly no fans of the ACA.  Roberts worked for the Bush campaign in 2000 in the Florida Recount.  He is a political conservative - no question.
But Roberts clearly believes that a Supreme Court ruling striking down the health care law would be an undue exercise of judicial power - substituting the Supreme Court's judgement for the judgement of elected officials.

In fact, Roberts took great pains to make clear in his opinion that this was not a judgement in favor of the policies in the ACA, stating, "we do not consider whether the act embodies sound policies.  That judgement is entrusted to the nation's elected leaders."

In my opinion, Roberts got it exactly right on the constitutional question, ruling that the government does not have the authority to require people to purchase health insurance but does have the power to tax those who do not.  Roberts wrote:
"The federal government does not have the power to force people to buy health insurance.  The federal government does have the power to impose a tax on those without health insurance...It is reasonable to construe what Congress has done as increasing taxes on those that have a certain amount of income, but chose to go without health insurance."

There were two principal arguments for the constitutional authority of the law.  The first, and actually primary argument was under the commerce clause of the constitution, the federal government has the right to "regulate commerce among the several states".  This has been construed by the court in the past as a broad power, with the federal government having been seen to have a right to not only regulate trade that moves across state borders, but trade within the borders of states that impacts the marketplace of other states - for instance, regulate the growing of corn in Iowa even if that corn is being sold within Iowa because it impacts national prices.

What has never been tested before is the authority of the federal government to require people to DO things versus NOT DO them.  Requiring an affirmative purchase from an individual by requiring them to purchase something would be an expansion of historical power, one that the 4 liberal justices were comfortable with, but one that the other 5 more conservative justices were not.

In other words, the court ruled that it would be unconstitutional to, for instance, throw people in jail if they didn't purchase health insurance.  This seems to me to be a very prudent interpretation of the constitution as a ruling on the commerce clause that allowed the government to require people to do things would open the door to virtually unlimited power over individual actions by the federal government.

The taxation question is a different question as the governments authority on taxation is considerably more broad.  The clause in the constitution (Article I, Section VIII) states:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"
Note that the original text also went on to restrict taxes to only allow that the taxes be uniform (i.e. proportional to population or trade) but that this restriction was removed with the ratification of the 16th Amendment in 1913.

There are essentially no restrictions on the right of Congress to pass any tax it sees fit, so if you construe the financial fee charged in the ACA to those without individuals as a tax, which both Roberts and I see as a reasonable interpretation.

Some will argue that the issue is the same as with the commerce clause in that this is a tax on inactivity versus a tax on activity (say an income tax or a consumption tax), or, more bluntly that you are taxing people for NOT having health insurance versus taxing someone for purchasing something or earning income.

This argument falls flat to me for two reasons:
1.  It is a distinction without a difference - Congress creates tax credits all the time to provide incentives for behavior - tax deductions for charitable contributions, tax credits for education and solar panels, tax credits for oil exploration and many, many others.  If Congress had worded the health care bill as a general tax increase with a tax credit for those who purchase health insurance, the net effect would have been the same - an increase in tax costs for those who don't purchase health insurance and a net neutral tax position for all others.
2. Even if you construe this as a new and different tax on inactivity, there is no reasonable interpretation that I can make of the constitutional authority above that prohibits taxes on inactivity.  The taxing power of Congress is fairly absolute.

Roberts, in breaking with the conservative wing on this issue, follows a long tradition of judicial independence.  Few today remember Chief Justice Warren Burger.  Burger was appointed to the court by Richard Nixon in 1969, replacing the liberal Earl Warren, who had presided over many liberal decisions with the most famous being Brown v. Board of Education (which ruled racial segregation in public schools illegal) as part of what was, at the time, perceived as a conservative effort to stack the court.  Playing far from the script, Burger, once on the court, presided over several surprisingly liberal decisions, the most notable being Roe vs. Wade in 1973, which he wrote himself.  Burger also wrote the 9-0 ruling that the Nixon White House had to turn over crucial information about the Watergate break-in and wrote the 9-0 decision in a case that required expansive busing of school children in Charlotte to better integrate public schools.  Burger, in other words, became a reliable liberal on the court.

Similarly, David Souter, a George Herbert-Walker Bush nominee, was seen as part of a new conservative majority when he was appointed to the court in 1990.  Far from following script, Souter became a reliable liberal vote on the court.

This is exactly why the judiciary is independent.  And the system works, largely, whether you agree with you agree with all the courts rulings (and few do - most liberals detest the Citizens United ruling that allows essentially unlimited corporate spending in elections and most conservatives will detest the ACA ruling.)

In my opinion, Roberts did exactly what a Supreme Court Chief Justice should do.  He exercised independent judgement on a difficult constitutional question.  And in my opinion, he also got it exactly right.

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