Dump the Ump? Not So Fast

By Bob Sanchez, JMI Policy Director
Posted June 28, 2012

Chief Justice John Roberts’ surprising opinion upholding most of the Affordable Care Act (ACA) may have been foreshadowed during his confirmation hearings in 2005. That’s when President George W. Bush’s nominee to succeed William Rehnquist as Chief Justice of theUnited States solemnly pledged that he’d act as a judicial umpire.

That is, like several other recent Court nominees testifying before a Congress increasingly concerned about “judicial activism,” Roberts likened his job to “calling balls and strikes” instead of imposing his own views – especially when the Court was deciding  cases challenging laws passed by the nation’s duly elected officials.

In the wake of this ruling, many Americans who support individual liberty and limited government will conclude that Chief Justice Roberts’ view of umpiring may coincide with that of Hall of Famer Bill Klem, who officiated in the National League for 37 seasons, from 1905 through 1941.

Once, when Klem uncharacteristically hesitated a moment on a pitch call behind the plate, the catcher demanded to know, “Well, was it a ball or a strike?”  To which the feisty 5’5” bulldog of an ump famously replied, “Sonny, it ain’t nothin’ till I call it.”

Some conservatives who were rooting for at least a 5-4 ruling against the ACA will conclude that Chief Justice Roberts has assumed Bill Klem’s expansive view of umpiring discretion. And, unfortunately, the Supreme Court has no provision for instant replay.

Critics of the ruling are justified in wondering how Roberts divined that the penalty imposed on Americans who lack health insurance is a tax when the word “tax” appears nowhere in the ACA’s more than 2,400 pages and, indeed, when President Obama and the bill’s congressional sponsors steadfastly and repeatedly denied that it’s a tax. The President’s strenuous denial that it’s a tax was famously caught on tape during an interview with George Stephanopoulos of ABC News – formerly President Clinton’s flak and not known for tossing hardball questions at liberals.

Not only is it a tax, but for most Americans at all income levels it’ll amount to the largest single tax increase in U.S. history. Then again, the Court has long held that the Anti-Injunction Act explicitly bars lawsuits challenging taxes until the taxes have been collected and the payers sue for a refund.

In this case, the majority opinion conveniently held that the penalty is not a tax as defined by that Act and as established in court precedent. Therefore, with regard to whether the penalty is a tax or is not a tax, the Court majority managed to have it both ways in the same case.

Chief Justice Roberts has often explained that he views his job as calling balls and strikes — deciding the constitutionality of the laws passed by our nation’s elected officials rather than the wisdom of those laws. If, in the process, the Court majority also seems bereft of wisdom, as in this case, so be it.

Or are things not as they seem? This question brings us to the portions of the ACA that did not pass constitutional muster. If you think about it, all nine justices – those who joined Roberts in the majority and the four dissenters — signed on to opinions holding that the interstate commerce does not give the federal government to do absolutely anything Congress deems necessary and proper.

Granted, the spoilsport Ruth Bader Ginsburg – on behalf of her three liberal colleagues — wrote a 50-page opinion concurring with the result of Roberts opinion but adding that she and her colleagues would have OK’d an individual mandate based on Congress’s powers to regulate interstate commerce. So, in reality, the 5-4 alignment behind Chief Justice Roberts’ majority opinion was tenuous at best – and one more liberal on the Court might have paved the way for an all-out embrace of the ACA.

Fortunately, however, by an impressive 7-2 margin, the Court did strike down an ACA provision that would have empowered the feds to punish those states that refused to do their bidding with respect to expanding Medicaid.

This portion of the ruling has been hailed as a major victory for the Tenth Amendment, which reserves to the states and the people those powers not explicitly granted to the federal government. It also vindicates the position that The James Madison Institute took when it filed an amicus brief on this case.

That victory, however, was lost amid the tumult and shouting over the individual mandate cleverly disguised as a tax. Granted, trying to find something to applaud in this ruling of the Roberts Court is a bit like saying of the recent flooding during Tropical Storm Debby, “Well, at least it ended the drought.”

Then again, maybe there’s reason to hope that the big-government liberals will someday come to rue this ruling. As Jon Caldara of Colorado’s very conservative Independence Institute notes:

“While the socialists are celebrating the individual mandate that they love and that most Americans loathe, let’s consider the bottom line, according to Lyle Denniston, the most-esteemed and most senior Supreme Court journalist in the United States:

“The rejection of the Commerce Clause and Necessary and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.’”

If you Google the phrase “Kill the umpire,” you’ll get more than 34,000 references in less than a second. No doubt some critics wish Chief Justice Roberts would depart from the Court and possibly from this earthly realm immediately, if not sooner.

Yet history will be the final arbiter of whether Chief Justice Roberts put one over on the conservatives who confirmed his nomination or on the Supreme Court liberals who signed onto his majority opinion. This game is only in the fifth inning. Stay tuned.

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