In What Sense Did the Individual Mandate Survive John Roberts?
You know, I think Chief Justice John Roberts could have avoided nearly all of the bile being hurled at him by the more wild-eyed denizens of the right-wing deep:
Randy Barnett: John Roberts’ Travesty, Point by Point: In my view, the decision did lasting damage to Chief Justice Roberts’ public reputation. This seems to be the defining moment of his Chief Justice-ship, at least for years to come. It is hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future (as many did up until now). Whether or not the decision does lasting damage to the Constitution and the Court, however, itself will depend on how the political process responds…
had he made a very minor change in the way he wrote up his opinion.
If, instead of writing:
the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one…
he had instead, written:
the mandate is a legal command to buy insurance that is neither necessary nor proper to the regulation of commerce among the several states. But we are not done. §5000A(b) imposes an addition to the income tax on Americans, an addition to the income tax waived for those who provide evidence that they are covered by health insurance. The question is whether this tax provision §5000A(b)--itself clearly within the congressional power to tax incomes from whatever source derived--must fall with the mandate, or whether this tax provision can be severed and allowed to stand. Were the sole purpose of §5000A(b) to merely enforce the unconstitutional mandate, it would be unseverable and would fall. But §5000A(b) has another purpose: to raise revenue to pay the cost of the expansions of health-care coverage. Since Congress clearly has the power to amend the income tax code to include §5000A(b), that portion of the Affordable Care Act can and indeed must be severed, and stands…
Would Randy Barnett and company be so exercised? Would they then be ranting about how John Roberts
did lasting damage to [his] public reputation… the defining moment of his Chief Justice-ship… [threat of] lasting damage to the Constitution and the Court…
if Roberts had just said that §5000A(b) has two purposes--to enforce the (unconstitutional) mandate and to raise revenue--and that even though it falls under the first it stands under the second?
