Those who remember U.S. Chief Justice John Roberts’ confirmation hearings will recall his description of his role as akin to a baseball umpire. National Review‘s Rich Lowry returns to that analogy in reviewing Roberts’ opinion in the health care case.
In his Obamacare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law (as an activist, a partisan, and an altogether rotten human being), Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over. The ref called a foul, but didn’t interrupt the play.
As a result, there’s Obamacare as passed by Congress. Then there’s Obamacare as passed by the Supreme Court.
Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.
In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.