The Conservative John Roberts

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Jun 28th, 2012 @ 03:25 pm

Orin Kerr

I suspect a lot of conservative readers are pretty upset with Chief Justice Roberts right now. The position that the mandate is unconstitutional had become the standard Republican position, echoed by nearly every prominent conservative whether or not they know anything about constitutional law. So there will be a lot of folks on the right who see Roberts as some kind of traitor, or at least not a real conservative. Roberts took a liberal position, the argument will run, so he must be a liberal.

I don’t think that’s right. Reading over the Roberts opinion, the opinion strikes me as quite conservative. The opinion starts from the premise that the federal government is a government of limited powers. The opinion goes on to reject the federal government’s power to regulate inactivity under the Commerce Clause. It then goes on to reject a broad reading of the Necessary and Proper Clause. The opinion also imposes new limits on the federal government’s ability to force the states to adopt federal programs, striking down the condition that Congress can withdraw all medicaid funding if a state refuses to go along with the medicaid expansion.

These sections of the opinion are all about about the need to narrow Congress’s power, and they impose new limits on federal power that have not been seen before. They nicely match what a lot of conservatives have been saying about the Affordable Care Act. Roberts even comes very close to using the broccoli hypothetical — he ends up using a generic example of “vegetables” instead of broccoli, but he’s singing the conservative tune on these parts of the opinion.

Of course, Roberts ultimately concludes that the mandate is constitutional on the ground that the mandate can be read to work like a tax — and that so read, the law is constitutional. But methodologically, I don’t think there is anything “liberal” about that approach. The ultimate question on the taxing power was whether to read the a particular law formally or functionally: Do you look at whether the law says that it is tax, or do you look at whether it acts like a tax? There are pros and cons to each approach. But there’s nothing jurisprudentially liberal about taking the functional approach; it’s just the alternative way to assess the scope of the tax power.

Some will argue that the tax power argument comes off as a technicality, and the fact that the case hinges on a technicality suggests that Roberts was really just looking for a way to uphold the mandate. But it’s important to remember that the entire challenge to the Affordable Care Act was premised on a technicality. Everyone challenging the Affordable Care Act agreed that Congress could enact a single-payer system. Everyone challenging the Affordable Care Act agreed that Congress could enact the same law as it did if it only chose the formal label of a tax. So the nature of the challenge to the mandate was a bit of a gotcha argument: The major legislative achievement of the Obama Administration should be struck down because of the technical way it was done, even though Congress could have passed the same legislation with a few changes if only the Court had announced those changes beforehand rather than after. In part, that was the strategy behind the challenge: Make the challenge so narrow that the challenge really just applied to this one law. The thinking was that this would make it more likely that the Court would strike down the Act. But that also meant that the Court had an easy way to uphold the law, as they could just read the technicalities accordingly.

The result is an opinion that happens to please today’s liberals and annoy today’s conservatives, because the liberal law that was passed and that conservatives hate remains on the books. But the key opinion that leads to that result is not a liberal opinion; rather, it strikes me as a largely conservative opinion that just happens to get to a liberal result.

http://www.volokh.com/2012/06/28/the-conservative-john-roberts/