Reich writes: "By joining with the Court's four liberals who have been in the minority in many important cases - including the 2010 decision, Citizen's United vs. Federal Election Commission, the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship."
Portrait, Robert Reich, 08/16/09. (photo: Perian Flaherty)
Why Roberts Switched
30 June 12
oday a majority of the Court upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare in recognition of its importance as a key initiative of the Obama administration. The big surprise, for many, was the vote by the Chief Justice of the Court, John Roberts, to join with the Court's four liberals.
Roberts' decision is not without precedent. Seventy-five years ago, another Justice Roberts - no relation to the current Chief Justice - made a similar switch. Justice Owen Roberts had voted with the Court's conservative majority in a host of 5-4 decisions invalidating New Deal legislation, but in March of 1937 he suddenly switched sides and began joining with the Court's four liberals. In popular lore, Roberts' switch saved the Court - not only from Franklin D. Roosevelt's threat to pack it with justices more amenable to the New Deal but, more importantly, from the public's increasing perception of the Court as a partisan, political branch of government.
Chief Justice John Roberts isn't related to his namesake but the current Roberts' move today marks a close parallel. By joining with the Court's four liberals who have been in the minority in many important cases - including the 2010 decision, Citizen's United vs. Federal Election Commission, which struck down constraints on corporate political spending as being in violation of the Constitution's First Amendment guaranteeing freedom of speech - the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship.
As Alexander Hamilton pointed out when the Constitution was being written, the Supreme Court is the "least dangerous branch" of government because it has neither the purse (it can't enforce its rulings by threatening to withhold public money) nor the sword (it has no police or military to back up its decisions). It has only the trust and confidence of average citizens. If it is viewed as politically partisan, that trust is in jeopardy. As Chief Justice, Roberts has a particular responsibility to maintain and enhance that trust.
Nothing else explains John Roberts' switch - certainly not the convoluted constitutional logic he used to arrive at his decision. On the most critical issue in the case - whether the so-called "individual mandate" requiring almost all Americans to purchase health insurance was a constitutionally-permissible extension of federal power under the Commerce Clause of the Constitution - Roberts agreed with his conservative brethren that it was not.
Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax - and the federal government has the power to tax. By this bizarre logic, the federal government can pass all sorts of unconstitutional laws - requiring people to sell themselves into slavery, for example - as long as the penalty for failing to do so is considered to be a tax.
Regardless of the fragility of Roberts' logic, the Court's majority has given a huge victory to the Obama administration and, arguably, the American people. The Affordable Care Act is still flawed - it doesn't do nearly enough to control increases in healthcare costs that already constitute 18 percent of America's Gross Domestic Product, and will soar even further as the baby boomers age - but it is a milestone. And like many other pieces of important legislation before it - Social Security, Medicare, Civil Rights and Voting Rights - it will be improved upon. Every Democratic president since Franklin D. Roosevelt has sought universal health care, to no avail.
But over the next four months the Act will be a political football. Mitt Romney, the Republican presidential candidate, has vowed to repeal the law as soon as he is elected (an odd promise in that no president can change or repeal a law without a majority of the House of Representatives and sixty Senators). Romney reiterated that vow this morning, after the Supreme Court announced its decision. His campaign, and so-called independent groups that have been collecting tens of millions of dollars from Romney supporters (and Obama haters), have already launched advertising campaigns condemning the Act.
Unfortunately for President Obama - and for Chief Justice Roberts, to the extent his aim in joining with the Court's four liberals was to reduce the public appearance of the Court's political partisanship - the four conservatives on the Court, all appointed by Republican presidents, were fiercely united in their view that the entire Act is unconstitutional. Their view will surely become part of the Romney campaign.
Robert Reich is Chancellor's Professor of Public Policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Bill Clinton. He has written thirteen books, including "Locked in the Cabinet," "Reason," "Supercapitalism," "Aftershock," and his latest e-book, "Beyond Outrage." His 'Marketplace' commentaries can be found on publicradio.com and iTunes.
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I'm with you there, it is a minute improvement, but fairly insignificant.
I think the left somehow likes it because it is branded as liberal, which it is not really. The left has thinkers every bit as superficial as the right! ;-)
Yes, it is ethical, but that was never on the chopping block with the Supreme Court. Either way, profit is in the equation, BUT with Obamacare there is a segment of the law that requires the insurance companies to put 85% of the monies they receive back into healthcare.
What the Dems need to do now is outline very clearly each point of the Act that provides something good to the American people. And there is a lot! No, it's not universal healthcare, but it's providing things that never have been available before: no pre-existing condition riders, healthcare for the poor if they can't afford it, and more.
So Obama and the Dems need to counter the Republican surge against this by simply talking about what the good things in the Act are for the people, and they must start NOW, or Obama could very well lose this election.
I think that this battle was what Roberts was hoping for, because it's a HUGE stretch of reasoning that the penalty can be considered a tax.
My thoughts.
N.
While I agree with your assessment, constitutional lawyers will tell you it's not such a stretch. First of all, it was one of the arguments made. Second, constitutional jurisprudence requires that the Court bend over backwards to find any reasoning they can *not* to declare an act of Congress unconstitutiona l. So once the Commerce Clause argument fell, the only argument left was to cast the penalty (the penalty, remember, not the cost of purchasing the policy in the first place) as a tax.
Of course, this whole problem would never have come up if the President had just pushed Medicare for all, which *is* a tax for government subsidized health care. And I'm still not convinced that Roberts didn't voit in favor just to give the right wing something to fight for, since as you said the law is so complicated that it is going to take us a lot of time to explain to those who oppose it what it really says and does for us.
My point exactly! There will be trouble and the Dems need to be ready to counter what the Repubs will most certainly sling as the truth, which will not be anywhere near the truth, about this Act.
N.
My biggest fear is that the tea-bags and neo-cons are going to do their black boot/brown shirt tactics AGAIN by not allowing any townhall discussions about Obama Care. Just as they did when the president started to roll out his original HC Plan.
N.
Well, it prevents large insurance companies from making a profit of over 15% and small ones from making over 20% and it cuts off all the ways around it like giving huge payouts to executives unless they com after the 15% is figured, which would be paid out of shareholder profits. In other words, it won't get done.
Granted it would have been better if it were Medicare for all, but it represents a huge improvement over what we had.
You don't get everything you want without working for it. When people finally start to understand how much better this is for them, all the mental midgets bleating about how bad it is will have a major probl;em trying to hold on to their offices and progress will get easier. Assuming the 40 Republican billionaires buying congress haven't completed their destruction of democracy by then.
15% of 2 trillion dollars ought to be enough profit for them. for a while. thing is there is no incentive for them to reduce health care costs.... they get 15% (approximately) of whatever it costs in profit, so the more it costs the more money they make.
and the more you pay. thing is, the more it costs, the more you "need" insurance to pay for it. but of course now the Insurance companies don't have to worry about that, because no matter how much it costs the government makes you buy it from them.
this is not free market. nor is it government taking care of the people's needs. it is mafia making you an offer you can't refuse.
usury was once punishable by law...
Thank you. From your lips to the sane voters ears!
N.
"Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax - and the federal government has the power to tax. By this "bizarre logic", the federal government can pass all sorts of "unconstitution al laws" - requiring people to sell themselves into slavery, for example - as long as the penalty for failing to do so is considered to be a tax."
Thank you Mr. Reich for a breath of sanity!
I wonder if any of our leaders run through the potential log term affect scenarios before they acquiesce to their advisers.
Roberts just set Obama up to lose the election, I am sure you don't see that yet, but that will become clearer over time...Either way Obama was going to be hurt, this way he antagonized both bases!and insured the republican's will come out in droves to vote for Romney!!! if he had ruled against the HCA the democratic base would have been up in arms and come out in droves...Robert s is a very cleaver man!He knew exactly what his vote would accomplish
3) To those of you who feel it necessary to give me thumbs down without commenting, consider this: That's exactly what the people you criticize do.
THat aside my JD if from an American School Bernadean University 1989 and I do agree with your clarification here but disagree with your former comment!
Have you ever heard of a non-profit corporation? How in the world do you think non-profits function? According to your "theory," they can't.
Profits are anything but essential and that is exactly what's wrong with our country and society in general.
How in the world the medical profession convinced the vast majority of Americans that healthcare should be practiced for a profit is well beyond me.
If the USA is supposed to be a Christian nation, how did such a completely un-Christian thing ever come about?
There's nothing wrong with operating healthcare as a charity, or as a non-profit government program, (my choice,) but somebody, somewhere, has to be making a profit, and lots of it, for any of this to happen.
I stand by my statement.
Sorry, but you're misunderstandin g the whole economic concept. "Non-profits" are not truly non profit. They have directors who get salaries, employees who get benefits. What they don't have are fungible products. They don't produce something than can be resold, and they don't have investors who can trade their stocks. They are basically all charities. They often produce "surplus" but it is retained. But if you don't think a nonprofit is just another corporation, look at the salary of the head of the Red Cross...
The medical profession has always practiced for a profit. Otherwise a doctor starves to death. When the cost of living got so high that doctors had to increase their charges to pay for their offices, labs and nurses, insurance companies got into the act so that someone could pay a little each month and then be protected if they had a medical problem that cost more than they would have had if they had just saved the money. The problem isn't that healthcare is practiced for a profit. Many health plans are nonprofits. It's that insurance companies have huge overheads. And remember, if you close down an insurance company, you throw all their employees out of work
Profits are one thing -I try myself to make a profit or I wouldn't be in business- obscene profit, mindless, resource-gobbli ng growth as a default means of accumulation as in a corporate charter, goes against all things natural and makes us all poor except for the mindless, introspective profiteers who can buy and therefore manipulate the less ambitious and socially conscious and attempt to bend them to feed insular power needs well beyond basic and even righteously gained material wealth.
THAT's the point at issue, and it's not really Democrat verses Republican but inhuman (or rather, human) illogical greed verses progressive logic spread of resources.
Surely that can be understood by even any of you surviving Neanderthals.
The choice has a political manifestation and that's where the two parties come in and there is a real difference. It is the Democrats that pushed for universal healthcare for decades. The New Deal, the War on Poverty, are all Democratic ideals. It has been the Republicans who have promoted "obscene profit, mindless, resource-gobbli ng growth..." and the accumulation of wealth into the hands of the very few.
I'll match my Marxist credentials against anyone's here, but I think a lot of you are being all too shortsighted. The first step needs to be the transfer of ALL voting stock in ALL corporations to employees, retired employees and people who live in areas where the corporations have their offices and production centers. Then they can sell nonvoting preferred stock and bonds to anyone who wants to invest, but the actual control of the corporation is in the hands of the workers.
I would say since Congress is charged with control over our money, Banks should be owned and run by the Government for our benefit and not private interest. THe same with Medical care, which is a basic Human Right!
We should have learned our history lessons from the Rothschilds, but we still haven't and now our government is also controlled by the Banks...As long as Banks control governments there will be limitless wars! Because War is big business and very profitable for those at the top!
I sincerely hope that your comment about the Rothschilds was not meant to extend beyond the individual family. Too often, I'm sure you are aware, it's used as a euphemism. I trust you aren't of the ilk that would do so.
I refer to that family and the banking connections today here in America which included JP Morgan and Goldman Sachs...
in an instructive sense
I am not as you may imply antisemetic, Neither am I a Marxist which is what I perceive of you from your discussion!
I am not in favor of any anti capatalist movement just how it has raveled out of control in most countries today...But that goes back to the banks!
I would be for state capatilism but employee stock ownership unless that was how the company was set up, is pure socialism and I am also not in favor of that! In short I am against Marxist views on most points, his idea of utopia is illusionary in the real world...but I am not against his theory of capatilism which he was correct in his understanding of its frailties...
No, all those Judges are dead.
If you mean that this Obamacare decision was also based on political ploy...I would agree, otherwise I am lost as to your point!
That Obama was able to get this plan passed and survive past the Supreme Court is a miracle.
They not,.... all but do that,... (ration care) They do, DO THAT, for they refuse to pay for some procedures, because they want bigger profits.....Wha tever the reason is
....It is still rationing.
Universal health care exists in the US. It's called Medicare, and only needs to be extended to the entire population.
"America got what she got because of racism 60 years ago."
Alas, that statement applies to so much of modern America.
His vote was calculated to give the Election to Romney! Everyone against this Health Care Plan is nor rallying behind Romney...Watch how this plays out over the next few months...
1) The "uninsured" are irresponsible people who made bad choices.
2) Were it not for their "irresponsible choices", ie. having cell phones or cable TV, the uninsured could afford insurance.
3) They should find a job that provides benefits.
4) It's not "government's place to help those people". They should go to their church or charity for help.
5) I don't want my tax dollars going to that "lazy, fat, unemployed, uneducated woman on welfare in the inner city with five children who just wants a handout".
6) National healthcare will mean "long waiting times and bureaucrats coming between me and my doctor. (I find this one rich because the insurance companies already do that).
7) I don't want to pay for other peoples' medical needs.
Frankly my dear....THEY DON'T GIVE A DAMN.
The poor, sick, and elderly....(The last category may be all three).... are just a big nuisance. Sadly I seems, it's all about profit now, and if you do not generate profit?? you do not count.... You have no value to them.
It think republicans feel, that if people are poor or otherwise in need, the church can take care of them. That is simply not possible, for the need is too great.
And then, I don't want ANYBODY to have to rely on charity. Charity is demeaning.
We constantly hear, that this is the richest country in the world. Well show it, for Pete's sake!! Treat our citizens with respect. USE some of all that money to repair the country and get people back to work. When enough people are working, the whole economy will slowly get back to normal, and we can pay off our debt.
Of course that means that the republicans HAVE to start saying yes"
Let's see if it is still in their vocabulary?? Maybe buried somewhere deeply in their dark souls.
I think most of us feel in our hearts, the horror it would be to see all you have worked so hard for, consumed by flames. You KNOW, that many of the victims of the fires will NEVER get fully back on their feet.
I would think that all the ones vilifying "public employees" like Firemen and law enforcement should think twice. These people are under enormous strain trying to save lives and property. Risking their OWN lives in the process. We NEED them and we have to treat them decently.
After having been abused, exploited, and worked to death creating the wealthy, and having had their last dime stolen by a society the wealthy have perverted for their own devices, the poor should at least have the common courtesy to die quickly without complaint.
J. Roberts vote switch does not get him off the hook (for Citizens United[twice], et.al.)- after all, if a murderer gave a hundred grand to charity...would you give him a 'get out of jail free' card?
Meanwhile let's not hold our breath until Scalia or Thomas vote for anything not flagrantly conservative.
And I don't think people are against universal health care, we are against a bad law that the SC just approved through deception...as Reich righfully said, next we will sell ourselves into slavery... next time instead of blasting us for trying to warn you...try stopping for a moment and thinking!!
As many of us have attempted to explain even with the abundance of thumbs down:
" By this "bizarre logic", the federal government can pass all sorts of "unconstitution al laws" - requiring people to sell themselves into slavery, for example - as long as the penalty for failing to do so is considered to be a tax."
This court's integrity (if I may use such a battered old expression) will AWAYS be up for question as long as Scabious Scalia and his lapdog "Uncle" Thomas are wearing the robes they are disgracing and the former is mouthing off from on high.
What a load of tea-party, libertarian nonsense as usual applied with a broad, worn out brush. I know and have dealt several people who work in Social Services and get paid quite small salaries for often exasperating jobs trying to fairly dispense increasingly atrophied resources meted out by Lobbyist-enable d and enriched "lawmakers" (and breakers), the same who lay down laws and cut resources for the needy whilst pandering to their every whim in the bloated privately-fed corporate sector, who are their real bosses.
You really must live in a social vacuum somewhere removed from the streets, or choose to be guided by the fact-benders and their owner-media patsies and mouthpieces.
You make an interesting point but there is an equally strong case that it is not the government's role to provide health care or health insurance to all.
However, our system is unfair because it uses the tax incentives to employers to be a funding mechanism for health insurance for many so that the tax revenues of the country, which are to serve all with equity if not absolute equality, is effectively discriminating against those who have to provide their own health care.
More importantly, the Medicare, Medicaid, Veterans health care, and government employees health care systems impose such a drain on the budget that this is another example of unfairness to those who are not covered. Why should only people over 65 get subsidized health care?
Finally, the problem with the AHCA and the Medicare programs is that they are a boondoggle for the hospital and pharma industries. The public option was sacrificed and we have flawed bill.
Ultimately, the bottom line is that we should extend Medicare to all but use the leverage of the system to negotiate way lower rates or impose price controls.
The argument about incentives and research are bogus. Wal-Mart is content to chase profit pennies at time and it amounts to billions. There is no reason for a drug company to sell a pill for $40 in the US and $1 outside.
WalMart is also content to pay their employees so little that they qualify for food stamps. How's that for corporate greed?
The people will not think of Roberts as a "republican" but as more damn Supreme Court nonsense like integration and bussing. The Republicans... who really wanted this bailout of their friends in Corporate Medicine... can still run against "the mandate" for the next hundred years. It's a win win for them.
And of course the Democrats will get those checks from the Big Donors too.
The fact that there is a movement to pass a constitutional amendment that would cancel the Citizens United decision says it all, I think. I would believe that Roberts would make a tactical 'switch' in his ruling on health care, so as to try to head off the constitutional amendment movement.
It is telling that the GOP and TPers have not given up on killing Obamacare, nor has Romney in his campaign speeches. So what does the Roberts switch on health care really mean in the long run if the impact of Citizens United causes a shift in power in the Senate as well as gets Romney elected?
It is a chess game. Stay tuned and don't give up on the constitutional amendment. Push it harder than ever.
I like the way you think and reason. There is a vast right-wing conspiracy, and they are playing it out right in front of our eyes. The fix is in and has been for quite a long time. These guys play rough, tough and smart.
Roberts didn't 'change sides' he just made a tactical move. The court had been 'winning' for too long and too easily. Citizens United had piled the straw on the camels back to just about breaking point. For the Supreme Court to make a corporation into a person was just too much for the nation to take. Things were beginning to unravel. The hordes were at the gates. If Roberts had allowed the ACA to go down in defeat, that would have been the straw that tipped that camel over and the sharpening stones would have been unwrapped from their oily rags, and the pitchforks would have been sharpened and ready to go. It was a tactical placating move by a pretty good chess player, and an even better follower of marching orders from high above.
McCain and Pallin were put together to ensure that Obama wins...make it a close race, but the GOP and the Kingpins behind them wanted no part of the mess that Cheney/Bush made. Let the upstart attempt to clean up their mess, but memo the GOP in the Congress to pledge not to lift a finger to help, but only to use that stiff finger to poke Obama in the eye at every opportunity.
We have to fight smarter, and quicker.
"When a court confronts an unconstitutiona l statute, its endeavor must be to conserve, not destroy, the legislation."
-- Chief Justice Roberts
This was all just kabuki theatre, a dance where conservatives and liberals play their parts, positioning themselves for the coming election, always knowing where the game will end.
Roberts is not some saint who saw the light--he's in it for the corporations, pure and simple.
Minimum wage in 1968 was $1.60 which today has the spending power of $10.65. Minimum wage today is $7.25 which puts the average wage earner $3.40 behind the economy. If that minimum wage were raised to meet the cost of living the wage earner would not qualify for social services and likely be able to afford healthcare.
The states need to realize that as long as minimum wage lags behind the cost of living they'll be faced with higher costs for social services. Tea Partiers want churches to cover the difference. It's just not a rational expectation.
It looks like the majority of the raises occurred with the demise of the economy - probably for just this reason but Congress, as usual, didn't go far enough in the right (meaning correct) direction.
What part of "partisan" don't we get?
I knew it at their nomination BEFORE they were vetted or confirmed and they haven't disappointed, yet.
This may have the look of equanimity but don't be fooled. There is a Right-wing ulterior to this every bit as much as Citizens United.
CJ Roberts isn't the only one responsible for the slip in the Court's credibility. The SCOTUS has been sliding down the slippery slope since Rehnquist called the Florida vote in Dubya's favor, and shenanigans like Roberts and Alito lying to the Congress re stare decisis, and Long Dong Silver not knowing which box to tick five years running on his personal income tax hasn't exactly lent credibility to this Court, either.
We the People are sick of the SCOTUS not doing their jobs properly and we are going to be looking for (1) No more political appointments since this see-saw nonsense between the two parties is getting out of hand; We the People will elect those who will sit on that bench, (2)Term Limits: Each justice will be re-elected every two years with the General and the Mid Term elections, and (3) No one shall occupy a SCOTUS seat for more than an aggregate of twenty years total.
It is high time these clowns get the message that WE ARE MAD AS HELL AND WE'RE NOT GOING TO TAKE IT ANY MORE!
Let them clean up their act or get the Hades OUT!
He is just trying to save his *** -- er, legacy, albeit a trifle prematurely, since he is so young. But with his disastrous track record: Citizens United; the bankruptcy debacle; Lily Lebetter; the taking (eminent domain) in New England, plus a host of other less salient cases, everybody knows where he is coming from and why Bush (read: Cheney) appointed him -- to serve Our Corporate Masters.
We can only hope that a merciful Fate removes one of the older dinosaurs so that Obama, if re-elected (yes, hold your nose and vote for him), will have a shot at appointing a few human beings to the Court.
Justice Ginsberg, ya gotta hang in there!
This was a pro-corporation vote, in line with Roberts' CITIZENS UNITED Debacle. And SCOTUS made sure their continued partisanship was still on the table by the Montana decision on corporate funds for elections.
I have had a fortunate life – a poor family, but the benefits of free/inexpensiv e education so none of this will affect me much at 70. But if you have kids Republicans start thinking about the air and water they will consume, their working conditions, the testing done on food and drugs, etc. etc. More the reason for a Democratic administration and Congress. We've been had.
Roberts may well have been concerned about the declining reputation of the SCOTUS, but I doubt he voted this way primarily for damage control or institutional PR. Rather, an overturning of ACA would likely lead to a renewed push for what really should have been on the table in the 1st place...a Single Payer / public option system.
Now the D's and liberals will be content to defend ACA and its elected supporters; and any further talk of a single payer system will be forestalled for likely very many years.
Not to dismiss the gains made via ACA, but in my opinion, the D's made a huge mistake- both ethically and strategically - by not putting Single Payer / Public Option on the table for discussion. Also IMO, mandatory purchase of insurance probably should have been found unconstitutiona l...but was only necessitated by the poor compromise that is "Obamacare".
Whether you're a drugged out former playmate, a liberal president with a law being challenged, or a conservative president disagreeing with a state law, if you want to be heard by the SCOTUS under Roberts make sure your case involves expanding the power of the Federal government.
If you want to win, then make sure your on his side. Anyone who thinks Robert's has converted into a liberal is going to be sorely disappointed the next time a Republican law is being challenged in his court.
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