On The O’Reilly Factor last night, Megyn Kelly and Bill O’Reilly discussed the Supreme Court’s recent historically low approval ratings. The Court’s recent rulings inevitably came up during the segment, and when discussing the 5-4 ruling of National Federation of Independent Business v. Sebelius (where the Supreme Court upheld Obamacare by legally classifying it as a tax), Kelly (when she wasn’t being interrupted by O’Reilly) said of Chief Justice John Roberts:
“What Roberts did with Obamacare was wrong because he said, when he was getting confirmed, I’m either going to call balls or strikes. I’m the umpire. But what he did, unlike the other eight justices on that court, was he saw a ball and he called a strike. Now that’s not what we put them on the high court to do. He wanted to protect the reputation of the court. That’s not what he’s there for.”
When O’Reilly claimed that Roberts ruled the way he did because he “wanted to pass Obamacare,” Kelly retaliated, “I don’t believe that for one minute. Do you know how conservative that guy is? I covered his Supreme Court confirmation hearings wall to wall. I’ve read virtually everything the guy ever wrote. He is a conservative man. But that’s irrelevant. He can go on the Supreme Court whether conservative or liberal. He’s supposed to rule according to his conscience and what he reportedly did was rule with the liberals to uphold Obamacare because he wanted to protect the reputation and integrity of the high court. That’s not his job, even as the chief justice. The liberals saw a strike and called a strike; the conservatives saw a ball and called a ball. He did the opposite.”
Kelly and I are in complete agreement. She made the same argument I’ve been making for the last year.
This is also why I find the future of the Supreme Court’s actions in jeopardy with a possible constitutional crisis.
Controversial Supreme Court rulings are nothing new. But after liberals went berserk in the wake of Bush v. Gore, they’ve had skeptic eyes honed on the body ever since. And yet despite it’s rulings on Obamacare, Arizona v. United States (where the court struck down Arizona’s controversial anti-illegal immigration law) and United States v. Windsor (where the court ruled the Defense of Marriage Act as unconstitutional), the left still accuses the court of having a conservative bias. Go figure.
I happen to agree with the Court’s rulings on all those cases – except Obamacare. Not only because of Kelly’s reasoning, but because the grounds of which Roberts ruled it constitutional do not hold water either.
Let’s address each separately. As Roberts testified during his confirmation hearings, the Supreme Court is meant to be an apolitical referee, kind of like what the non-partisan Congressional Budget Office (CBO) is to Congress’ legislative bills. Not only is it not supposed to play politics in Washington, it’s not supposed to rule with politics in mind either. The justices are meant to be non-partisan enforcers of the law that apolitically uphold the Constitution as they interpret it (be that as a “living document” with purposivist interpretation or a “dead document” with textualist interpretation).
The ruling on Obamacare was arguably the most hyped Supreme Court decision in recent memory (yes, I would say even more hyped than DOMA, considering 2012 was an election year), and despite Justice Anthony Kennedy – the traditional “swing vote” on the bench – ready to rule it as unconstitutional along with Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Roberts was more concerned with the public perception of the court having a “conservative bias” then he was (as Kelly accurately describes) calling a ball a ball. Despite the countless other rulings during his tenure when majority rule sided with the liberal justices, Roberts panicked last minute and was afraid that ruling against Obamacare would have forever solidified his court (and the institution in general) as a “biased court.”
Several legal experts even agree that the majority opinion reads inconsistently – that it starts one way but then does a 180 halfway through (which is probably why CNN infamously jumped the gun in reporting it was overturned). Indeed, several news outlets had reported that Roberts changed his mind, based on insider information.
I concede that speculating on his intentions as to why is purely conjecture. Only Roberts knows the truth to that question. But the evidence strongly supports that, as Kelly said, Roberts saw a ball but called a strike.
But even the grounds on which it was called a strike fail to pass the Constitutional test. Even though Obamacare was staunchly sold by its supporters as “not a tax,” the Supreme Court ultimately ruled that the only way the legislation can be enforced as a law is by legally classifying it as a tax.
According to Article 1, Section 7 of the Constitution, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
Basically, if it’s a tax, it needs to originate from the House. However, the Patient Protection and Affordable Care Act originated from the Senate.
Now some Obamacare supporters may ardently make the case that “the bill” actually did originate from the House, which is what makes it Constitutional as a tax. The bill in question that they’re referring to is the Service Members Home Ownership Tax Act (H.R.3590) that was introduced by Rep. Charlie Rangel (D-NY) on September 17, 2009.
You might be thinking, “Home ownership act? What the heck does that have to do with health care?” And you’d be right, the bill had nothing to do with health care. It was a bill meant to amend the Internal Revenue Code of 1986 to modify the first-time homebuyer credit in the case of members of the Armed Forces and certain other Federal employees. In fact, it was unanimously passed by the House in 2009 by a vote of 416-0.
But upon reaching the Senate, the bill was completely gutted (and ultimately killed) by the Democratic majority and replaced with the Patient Protection and Affordable Care Act in December of 2009 – brand new legislation with a brand new (unconstitutional) revenue provision that originated from the Senate, not the House
Thus, the Supreme Court screwed up big time. Obamacare supporters can call the revenue provisions a “penalty, not a tax” all they want, but the fact is the Department of Health and Human Services couldn’t legally be using the Internal Revenue Service (IRS) to enforce these “penalties” if they weren’t taxes – and that’s how the Supreme Court (our official umpire) called it, albeit on unconstitutional grounds.
My point is that the Supreme Court horribly flubbed this ruling precisely because Chief Justice Roberts was more concerned with the political backlash than he was about getting it right. And if this is the way the Supreme Court is going to be ruling on landmark cases going forward, then we have a serious Constitutional crisis on our hands.
Meanwhile, given its recent rulings, liberals can no longer claim the Supreme Court is “conservatively biased” (despite the emotional rhetoric over the Voting Rights Act ruling, I’ve yet to hear one solid constitutional argument against the conclusion that one provision is outdated in at least 5 out of the 6 states it originally applied to where African-American voter turnout has now surpassed white voter turnout). Roberts has clearly gone out of his way (unconstitutionally in one case, at least) to prove otherwise.