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The Jury Is Still Out on Chief Justice Roberts

Chief Justice John G. Roberts Jr. with Justice Elena Kagan. (Photo: Steve Petteway / Flickr)

Last week, in a (5-4) decision, the US Supreme Court upheld the Affordable Care Act (ACA). Dubbed “Obamacare” by its opponents, the ACA is the cornerstone piece of legislation of the Obama administration. Many were surprised that the court did not overturn the individual mandate provision of the act requiring most Americans to get health insurance or pay a penalty. Even more surprising to some is that it was Chief Justice Roberts who proved to be the swing vote, siding with the court’s four liberal justices.

As a result of this decision, some conservatives are questioning Chief Justice Roberts’ allegiance to their cause. Texas Gov. Rick Perry (R) said, “The Supreme Court has abandoned us …” And Florida Gov. Rick Scott (R) said, “Today’s decision by the Supreme Court of the United States is simply disappointing …” The Wall Street Journal’s editorial board wrote, “the Chief Justice had to rewrite the statute Congress passed in order to salvage it.”

Liberals and pro-ACA advocates are praising Roberts for saving health care reform and possibly the 2012 election for President Obama. Howard Kurtz from Newsweek and The Daily Beast wrote, “The man who saved the president’s health-care law is the new liberal heartthrob.” Well, the jury is still out.

The Obama administration’s primary argument in supporting health care reform legislation was that Congress had the power to enact the ACA based upon Article 1, Section 8, Clause 3, of the Commerce Clause; Congress has the power “To regulate Commerce with foreign Nations, and among the several States …” The court held that the ACA was unconstitutional based upon the Commerce Clause. However, the court found that the ACA is constitutional based upon Article 1, Section 8, Clause 1, the power to tax, “The Congress shall have Power To lay and collect Taxes, Duties …” By rejecting the Commerce Clause argument, Roberts may not be as liberal as people claim. In fact, this could be Chief Justice Roberts acting more like the great magician Harry Houdini.

It is possible that in this majority decision Roberts has set the predicate to limit Congress’ power over state action under the Commerce Clause in future decisions. Roberts wrote, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority … They (the Framers) gave congress the power to regulate commerce, not to compel it.”

The court has upheld Congress’ use of the Commerce Clause as a grant of Congressional authority over the states’ in particular instances. The problem is that the Constitution does not define “commerce.” Some believe that it refers simply to trade or exchange, while others believe that the founders had a broader meaning that applies to commercial and social intercourse between citizens of different states. The latter has allowed the national government to exert a greater amount of power over the states in civil rights and voting rights cases. For example, the Civil Rights Act of 1964 was passed by Congress based upon the Commerce Clause.

The Supreme Court has agreed to hear the case of Fisher v. University of Texas and will rule later this year. Fisher challenges the University of Texas’ ability to use race as factor in its affirmative action program. The court is also expected to rule on a Texas voting rights case that will provide clarity about the role of the federal courts under the Voting Rights Act of 1965. Could it be that by rejecting the Obama administration’s assertions under the Commerce Clause that Roberts is paving the way for upcoming conservative challenges to established civil rights legislation?

Most will tell you that Chief Justice Roberts is a brilliant man. He is playing three-dimensional chess while most others are playing checkers. With this ACA decision, Roberts may have engaged in a level of prestidigitation that even Houdini would envy. By giving the Obama administration its legal victory with his left hand (pardon the pun); he taps his magic wand (or pen) with his right hand and limits the power of the national government to regulate state action going forward.

At the end of the day, is this not what ultra-conservatives are after? They claim to want a smaller national government, returning power to the states, “states rights.” If this is Roberts’ true intention (and only time will tell), it will be harder for liberals to complain about his logic since he laid out the predicate for it in the ACA decision that they are now applauding.

Be careful who you applaud and why. Chief Justice Roberts may not be a traitor to the conservative cause; the jury is still out.

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