Self Evident Truths: June 2012

MISTER ROBERTS

Volume 1 Issue 27

You teach yourselves the law, but I train your minds. You come in here with a skull full of mush; you leave thinking like a lawyer.

Charles Kingsfield (Paper Chase)

Professor William E. Martin was a law professor everyone feared. He fashioned himself to be Campbell University School of Law’s version of Paper Chase’s legendary Professor Kingsfield. Standing to recite in class and becoming the subject of Professor Martin’s ridicule was a right of passage in our small law school in Buies Creek, North Carolina. He graduated top in his class at Wake Forest University and was not much older than many of our students. Professor Martin had curly reddish hair, when un-kept reminded us of Bozo the Clown, but it was never funny to observe the sadistic joy he took in the intimidation of first year students. Even though some thirty years have passed, we still tell Professor Martin stories.

However, by the time we graduated we knew that Professor Martin had turned our skulls full of mush into brains of lawyers. You see lawyers look at the world differently from others. We are cynical, sarcastic and purveyors of dark humor. We are suspicious and crafty. Most of all we want you to engage us in a game you think is checkers, when all the time we are playing chess. It is the nature of our beast, but it is who we are- Or more precisely what Professors like William Martin turned us into.

One thing Professor Martin taught me was to be suspicious of an opponent when that opponent is doing something I think is profoundly stupid. “Most lawyers know what they are doing” he would instruct. “And if you think your opponent is stupid, you best ask of yourself, ‘What did I miss?’”

“Chief Justice Roberts did what?!” I screamed into my car radio as I heard the news report of the Obamacare decision. Glenn Beck called him a “weasel”, Rush Limbaugh called it an “appalling disgraceful decision; other commentators and bloggers vilified the Chief Justice as another George Bush mistake. As I pondered the decision I had to ask-“What am I missing?”

One of the lessons in Constitutional Law taught by Professor Martin centered upon the fact that the Supreme Court is not just a judicial body but a very political body. “Remember the decision in Worchester vs. Georgia”, he would exclaim. It was the decision that ruled the Cherokee Tribe was a sovereign nation. To which President Andrew Jackson responded: “John Marshall has made his decision, now let him enforce it.”

The fact is the Supreme Court has no authority except a power of moral persuasion. Therefore, the first unspoken question in every decision relates to the ability of the Court to sustain itself as a relevant political player in national affairs.

“Remember United States vs Nixon?” Professor Martin would remind us. The Supreme Court ruled on whether President Nixon had to release his private tapes. The decision was released the very week, the House Judiciary Committee voted on Articles of Impeachment. “You see the Court likes to shoot at dead ducks.” Professor Martin would muse. The Supreme Court cannot allow itself to get too far ahead of the national sentiment. It rarely leads but always follows the course of current affairs.

Our nation is in the midst of a divisive political time. It is unsettled which way the nation will move in the coming election. President Obama desperately wants to divert attention from the faltering economy and to run against some Republican boogeyman.

To strike down the key piece of Presidential legislation just months before the election would certainly inject the Court into the political whirlwind of a Presidential campaign. A vote to invalidate Obamacare would make the Court a political piñata. The Supreme Court would become just another partisan whipping boy by a President desperate to win a re-election by any political means at his disposal.

Enter the judicial genius of Chief Justice John Roberts.

By siding with the liberal wing of the Court, he placed himself in the position to write the majority opinion. In order for their position to prevail, the liberal justices had to acquiesce to his rationale. He refuses to expand the Commerce Clause, the centerpiece of the President’s justification of individual mandates.

Instead he awkwardly crafts the decision on the broad taxing power of the government, thereby limiting the impact of the decision. Making Obamacare a "tax" has other implications which will cause the President a great deal of concern. Budget bills are not subject to cloture rules in the Senate. Conceivably Senate Republicans will now have an opportunity to overturn the legislation by a simple majority.

"The filibuster cannot be used to block a budget resolution. That’s because the Budget Act sets out a specific amount of time for debate in the Senate -- 50 hours. If a specific amount of debate time is enshrined in the controlling statute, the filibuster is moot. So a simple majority -- not 60 votes -- is all that’s required to pass a budget resolution." (http://www.politifact.com/truth-o-meter/statements/2012/feb/13/jack-lew/white-house-chief-staff-jack-lew-says-budget-requi)

Additionally by ruling that States have the option not to expand eligibility without losing funding for their existing programs, the implementation of Obamacare now is dependent on the politics of individual States. Conceivably States with Republican legislatures could opt out of Obamacare.

"Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care and requiring that states accepting such funds comply with the conditions on their use...What Congress is not free to do is to penalize states that choose not to participate in that new program by taking away their existing Medicaid funding." (John Roberts)

This decision removes the Court from the political debate and shifts the debate to the legislative wisdom of the Congress. The presidential election now is about Obamacare.

“Members of this Court are vested with the authority to interpret the law; we 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.” (Chief Justice John Roberts)

One other thing Professor Martin taught us. “The genius of the Constitution,” he would explain, “is in the fact that it allows a peaceful revolution. You see we no longer need to overthrow an oppressive despot by force of arms. We have the opportunity to peacefully revolt on the first Tuesday after the First Monday in November, every other year.”

Somewhere Professor Martin is smiling.

Appendix

(a similar analysis- silver linings? http://www.patheos.com/blogs/philosophicalfragments/2012/06/28/five-possible-silver-linings-in-the-obamacare-decisio/)

another commentator agrees with Atticus

"[Chief Justice John] Roberts' concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president. How to reconcile the two imperatives -- one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds -- interpreting the individual mandate as merely a tax, something generally within the power of Congress. Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf. Law upheld, Supreme Court's reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed. That's not how I would have ruled. I think the 'mandate is merely a tax' argument is a dodge, and a flimsy one at that. ... Perhaps that's not how Roberts would have ruled had he been just an associate justice, and not the chief. But that's how he did rule. Obamacare is now essentially upheld. There's only one way it can be overturned. The same way it was passed -- elect a new president and a new Congress." --columnist Charles Krauthammer

http://spectator.org/archives/2012/07/05/chief-justice-roberts-you-fox Another writer agrees with Atticus

Thursday, June 28, 2012

Self Evident Truths