Chris Graham: Backdoor politics at play in historic health-care ruling

Few people saw the split decision of the Supreme Court on the 2010 health-care reform law coming, both in terms of the substance of the ruling, that the individual mandate is indeed constitutional, and in the makeup of the 5-4 majority.

Seriously, John Roberts as the fifth “yes” vote? That one was not even on the radar, but Roberts’ vote puts an unforeseen stamp on his legacy, in that Roberts seems to understand, maybe for the first time in his tenure as chief justice, the role that the Supreme Court needs to play in our constitutional system, as he noted in his opinion that he and his fellow justices “possess neither the expertise nor the prerogative to make policy judgments.”

“Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices,” Roberts wrote.

That said, don’t misread the ruling and Roberts’ opinion as being anything but political in nature, even if the political winds weren’t necessarily Republican-Democrat. Roberts, in forging a majority with the Court’s four liberal justices, found common ground by exploiting the desires of the liberal bloc to sign onto anything that would uphold the 2010 reforms, and in so doing, Roberts was able to get the four to agree that the Commerce Clause in the Constitution didn’t give Congress the power to establish the individual mandate at the heart of the reform, but rather that the power to set the mandate is in fact derived from the Congress’ taxing authority.

Thus Roberts is able to claim for himself whatever minor victory he can among fellow conservatives for blocking further expansion of the use of the Commerce Clause to permit future expansions of federal-government authority, while at the same time keeping the Court from what surely would have been another black-eye politics-infused decision on the lines of Bush v. Gore.

That the vast majority of constitutional scholars not on the payroll of conservative think-tanks agree that the Commerce Clause was more than enough to give Congress the authority to enact the individual mandate is an indication of the backdoor politics in the Court’s decision.

Not that you’ll hear many Democrats complain about Roberts’ machinations, because in the end his vote was key to upholding the signature piece of domestic legislation on President Barack Obama’s first-term agenda.

The ruling does give Republicans a slight bit of rope to tug politically in framing the penalty for individuals who don’t follow the mandate to purchase health insurance as a tax, but the taxes – $95 in 2014, on a scale that reaches $695 by 2016 – are the equivalent of the fees that one pays for choosing not to have auto insurance, and as such are not likely to be a hot-button political issue in and of themselves.

Roberts likely didn’t have that level of politics in mind as he crafted his majority opinion. No, the politics ultimately guiding his work were more institutional in nature.

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