Think Again: Obamacare and the Israeli Supreme Court

Decisions of the United States Supreme Court are not the normally the stuff of op-eds in Israeli newspapers.

July 5, 2012 12:43
US Supreme Court

US Supreme Court 311. (photo credit: Reuters)


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Decisions of the United States Supreme Court are not the normally the stuff of op-eds in Israeli newspapers. Yet there are aspects of the court’s ruling last week on the Affordable Healthcare Act (Obamacare) that highlight how different the approach of the Israeli Supreme Court, particularly under court presidents Aharon Barak and Dorit Beinisch, is to its in counterpart the US.

Chief Justice John Roberts’s ruling was clearly driven by a desire to protect the legitimacy of the US Supreme Court as something other than a purely political institution.

Critics of the ruling have charged that he was intimidated by thinly veiled threats from President Barack Obama that he would run against an “activist” Supreme Court if Obamacare was found unconstitutional, a line of attack frequently echoed in the liberal media in the months leading up to the decision.

It has been widely reported that the chief justice switched his vote from the way he sided in the initial judicial conference following oral arguments. That is borne out by an analysis of the dissenters’ opinion.

Their opinion appears to address the issue of severability (would striking down the healthcare mandate require striking down the entirety of the Affordable Healthcare Act?), an issue rendered moot by the final decision upholding the healthcare mandate. That suggests Roberts was originally part of a majority to strike down the healthcare mandate, but differed with the four dissenters over whether the entire Affordable Healthcare Act must be struck down as a consequence.

I was schmoozing with Prof. Randy Barnett, one of the principal theoreticians of the legal effort to have Obamacare declared unconstitutional, at a Jerusalem conference in honor of Milton Friedman’s centennial in late May, when he received disturbing news from Washington.

I now believe those perturbations from afar concerned Roberts’s switch.


Yet I think it would be hasty to conclude that Roberts was intimidated.

Shortly after his first term as chief justice, Roberts told Jeffrey Rosen, legal correspondent for The New Republic and a professor at Georgetown Law School, that he would do everything in his power to prevent five-to-four decisions, broken down according to the party of the president who appointed the justices, in the most significant cases. The five-to-four party-line vote in Bush vs Gore, which finally settled the 2000 election result, unquestionably made the court look more political and exacted a cost in its legitimacy. And Roberts signaled that he wanted to avoid future such cases.

The issue of the high court’s legitimacy never much troubled court president Barak or his successor; they simply assumed that their fiat was legitimate, and in that received the support of a largely compliant media.

Barak was not much given to judicial modesty or any form of deference to the elected branches. He boldly turned the Israeli High Court into the final arbiter of all societal norms by abandoning all traditional doctrines of judicial restraint, such as standing and justiciability. “Everything is justiciable” (even troop deployments in wartime), became his rallying cry.

Roberts emphasized several times in his opinion that the Supreme Court lacks the expertise to pass on government policy or legislative wisdom. Nor, he wrote, is it the job of the Supreme Court “to protect the people from the consequences of their political choices.” In other words, the judge’s role is not to pass judgment on the policy-making of the legislative and executive branches.

Again, that modesty did not characterize the Israeli Supreme Court under Barak and his acolytes. Employing the standard of “reasonability,” they assumed the authority to pass on the wisdom of every government decision, and in the process turned themselves, in former court president Moshe Landau’s words, into a court of “Platonic guardians.”

Finally, Roberts’s opinion showed a keen sense of limitations imposed by American federalism. He even succeeded in persuading two members of the Supreme Court’s liberal wing – Justices Stephen Breyer and Elena Kagan – to join a seven-to-two majority in favor of striking down a provision that would have allowed the federal government to force states to share in the cost of the expansion of Medicaid under Obamacare by threatening them with the loss of all Medicaid funding if they did not.

True, Israel does not have a similar federal system, but as court president, Barak never acknowledged any form of checks and balances between the various branches of government.

Rather, he and Beinisch always insisted on the “independence” of the judicial branch, including its authority to control appointment of new members to the High Court, and labeled any criticism of its jurisprudence, even that of legal luminaries like Landau, Ruth Gavison and Daniel Friedmann, as an assault on the “rule of law.”

DOES ROBERTS’S conservative judicial disposition – to which I am obviously sympathetic – mean that his decision on Obamacare was a good one? Hardly.

His institutionalist concerns are proper. The great constitutional scholar Alexander Bickel famously referred to the United States Supreme Court as “the least dangerous branch,” in a book by that name. And he celebrated various legal doctrines by which the Supreme Court avoids interjecting itself in the most contentious political issues – e.g. the political question doctrine, standing and justiciability.

But once the issue is joined in a concrete “case or controversy,” the court must at least give a plausible reading of the constitutional and legislative texts in front of it.

That Roberts failed to do. Not because he is not a brilliant jurist, but because he was determined to reach by hook or by crook a certain result to avoid having a five-to-four majority strike down Obama’s signature legislative achievement. And that kind of outcome-based jurisprudence also makes the court political in a different way.

Roberts, together with the four dissenters, rejected the claim that the Obamacare health mandate requiring citizens to purchase insurance or pay a penalty for their failure to do so could be justified under the Constitution’s Commerce Clause. The Commerce Clause, he wrote, gives Congress the authority to “regulate” commerce already taking place, not to require participation in commerce through the purchase of healthcare insurance.

For this he was fulsomely praised by a number of prominent conservatives – Charles Krauthammer, George Will and Randy Barnett. The latter consoled himself that Roberts had saved the Constitution by enunciating a much more limited view of the Commerce Clause and placing constraints on Congress at odds with “how most law professors viewed constitutional law” prior to the court’s decision. In a similar vein, George Will praised the chief justice for having restored a certain constitutional consciousness – an awareness that while the Constitution expanded the powers of the federal government from those under the Articles of Confederation it only confers on Congress certain enumerated powers. And enumerated powers necessarily imply that Congress lacks all those powers not enumerated.

That praise is more than a tad generous. The only specific case that he ruled beyond congressional authority under the Commerce Clause was where Congress mandates commercial behavior rather than regulating existing behavior. All the rest is non-binding dicta that does nothing to elucidate the limits of congressional power.

And on the single exercise of power that Roberts explicitly found beyond Congress’s authority under the Commerce Clause, he found the authority to achieve the exact same result under the congressional power to “lay and collect taxes.” In an exercise of legal legerdemain, he determined that the “penalty” under Obamacare could be called a “tax” instead.

Though the line between the two is not always a bright one, they are not the same, and the distinction has been developed in a long line of Supreme Court precedents.

The purpose of the penalty was not to raise revenue but to compel purchase of insurance. The preference of the drafters was that everyone purchase insurance and no one pay the penalty, i.e. that no revenue be raised.

Congress knew very well what it was doing in drafting the health mandate with a penalty. It explicitly rejected an earlier draft that would have imposed a “tax” on those without health insurance on the quite sensible grounds that such a bill could never have passed.

In addition, Yuval Levin points out, a considerable body of social science research indicates that whether one labels something a penalty or a tax has significant effect on behavior. Penalties for failing to fulfill some legal obligation – in this case, to purchase insurance – are much more effective in compelling compliance than “taxes” on not doing something. In the former case, one bears the stigma of illegality; in the latter, one is merely exercising one of two available options.

Finally, Roberts’s conclusion that what Congress may not do under the Commerce Clause, it may do pursuant to its taxing power, makes little sense.

Congress can only tax in pursuit of a legitimate purpose under some other clause of the Constitution. Prof. Richard Epstein points to a line of precedents that what Congress cannot do under the Commerce Clause it may not do via coercive taxes.

ONE SALUTARY effect of the result, however, is that the ultimate verdict on Obamacare will be rendered in November by the American people, and that is the preferable result in a democracy. A significant majority of Americans in all polls have consistently favored repeal of the entirety of Obamacare, and healthcare is the area in which Obama’s negative rating is highest.

If the Supreme Court had struck down Obamacare in its entirety, it would have largely ceased to be an election issue. Those who like Obama personally but hate Obamacare could have voted for him knowing that he will not again have the congressional majorities necessary to push through another such a monstrosity.

Now, they have to choose. If they want to get rid of Obamacare, they must elect a Republican majority in the Senate and Mitt Romney as president. If they fail to do so, then they have only themselves to blame for the consequences.

The writer is director of Jewish Media Resources, has written a regular column in The Jerusalem Post Magazine since 1997, and is the author of eight biographies of modern Jewish leaders.

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