It’s the Super Bowl, late in the game. It’s third and long, and the team determines that it must run a pass play, as a running play will not likely gain the long yardage needed. The quarterback completes a long pass, but there’s a penalty flag, as the scrambling quarterback broke the rules by crossing the line of scrimmage before he passed the ball. The team appeals the call, even though it is clear that the quarterback was at least 5 yards past the scrimmage line. After 3 tense minutes, the appeal ruling is….penalty flag withdrawn! The field referee takes the microphone, and announces: “The quarterback could have thrown the ball 2 seconds earlier before he crossed over the scrimmage line. Because he could have done that, with no penalty, we see it as inconsequential that he ran an extra 5 yards before he threw the ball. Therefore, the flag is withdrawn, it was a completed pass….”
Um….What?
Welcome to the Roberts Doctrine.
***
In 1803, the so-called Midnight Appointees were commissioned in the waning minutes of the Adams administration. The incoming Jefferson administration refused to process the paperwork. The case of Marbury v. Madison resulted. I have no doubt that the politics of the time were fascinating as between the outgoing Federalists and the incoming Democrat-Republicans. But what was the indelible effect of the failure to seat those 58 Midnight Appointees? Zilch. The effect of the Marbury v. Madison court determining that judicial review was the province of the Supreme Court? Huge.
Why? It was the Structure.
***
What is a conservative, anyway?
So-called “conservative” reaction to Roberts’ Obamacare decision is all over the map. What is “conservative?” Wikipedia lists no less than 10 subgroups, many in diametrical opposition to each other. Lately, in reality it seems as if conservative means only, “Not a socialist.” That’s a bit sad for a movement, but let’s work with that. Socialist, or not socialist.
Here’s my summary of what connects conservatives (or Center Righties, as I prefer):
“Men tend to behave badly when they have power. The Architects recognized this, and their principal design feature was to hedge against it. This hedge was to diffuse and limit the concentration of government power. In that way, the average Joe has a chance at living a decent life, and his society has a chance at thriving. Absent compelling circumstances, this Structure is worth defending.”
We can argue what “conservatism” should be. But at its core – with whatever small L or big L “classic liberal” moniker happens to be in vogue — it would seem to favor sustaining a society’s many institutions and structures, and to diffuse and embed power and influence into a wide lattice of institutions and people. The Architects’ diffusion of power is achieved both by pitting the federal government against states, and further by dividing federal power into three separate branches. Implicit is all of this is that numerous private sources of power flourish and enrich life. This Structure – diffusion and limitation – gives the average Joe a decent shot at avoiding being steamrollered by powerful rulers, and to design his own life. That is the pursuit of happiness.
The opposite of the Architect’s construct is socialism, which by design requires concentrated power. Individuals must be commanded by government to do what they otherwise do not wish, towards objectives defined by a ruling elite. The average Joe gets to pursue his own vision of happiness only within ever-narrowing spheres that are directed by the centralized authorities.
Thus, the socialist view of government structure (concentration of power) is diametrically opposed to the Architect’s structure (diffusion and limitation of power).
When great political squabbles arise in our national house, the Center Rightie should recognize and protect the foundation of the house: Structure. Keep powers diffused and limited. Allow them to concentrate only upon clear and convincing rationale or exigencies.
It’s all about the Structure.
And that’s where Justice Roberts blew it.
Why is the Roberts opinion so bad to a Center Rightie?
- Roberts does severe damage to the Architects’ Structure by abdicating the role of the Supreme Court. He finds that the Obamacare mandate is an unconstitutional grab under the commerce clause. But rather than call the penalty, he creates a by-pass device, to enable him to dodge the real issue. Answer this: Was any clarity provided as to what the constitutional law is, in this area? None.
- Roberts’ opinion, in Marbury v. Madison terms, was to decide to seat half of the 58 Midnight Appointees. That is, Roberts acted as a politician (making compromises), not a jurist (making Structure calls). Like an 1800’s politician playing for favors between the Federalists and the Democrat-Republican factions, Roberts abandons Structure in favor of splitting the baby, dreaming up a by-pass device to give a political victory to the Democratic party, and another smaller consolation victory to the Republican party. Regardless of the political wisdom, or lack thereof, Roberts’ opinion is the equivalent of deciding whether to seat 29 (or 36 or 18) of the 58 Midnight Appointees.
- Worse, Roberts’ by-pass device is pure bootstrap logic, which severely damages the Structure – both federalism and separation of powers. He finds that the mandate is unconstitutional under the commerce clause, but then envisions a hypothetical tax law that he thinks could have been – but specifically and intentionally wasn’t — enacted. He then goes off the deep end, by concluding that the hypothetical tax law could have been proposed, and if proposed, would have been passed by Congress and signed by the President. Further, Roberts then concludes that his hypothetical law, if it had been proposed, passed and appealed to the Court, would be constitutional. Finally, Roberts determines that the actual – and much different – Obamacare law that actually was passed, signed and appealed, is therefore constitutional, because it bears similarity to his hypothetical law. These new constructs – The Roberts Doctrine – relieve the government of the significant burden of having to operate within the enumerated powers; and further give a huge benefit to the government that it is assumed that hypothetical bills will pass Congress, and be signed by the President, and it is those hypothetical laws, not actual laws, that are the stuff that the Court will review.
- With Obamacare, the Democratic controlled House, Senate and Administration determined that they could not pass Obamacare if it were called a tax. So they structured it as something else. (Like the football scenario, they determined to pass on third-and-long.) But Roberts decided that he will give let the government have it both ways: The government not only got the electoral benefit of having not structured the mandate as a tax (thus, it passed), but it also got the constitutional benefit of the Roberts simply assuming the untrue proposition that Congress could have structured and passed the mandate as a tax (even though he government decided that it would fail, electorally, if it were structured as a tax.) As with the football scenario at the head of this article, it’s a bootstrapped, and faulty, argument, and it renders the limitations of the constitution as essentially meaningless. By this doctrine, any invented version of a law mayu be found constitutional.
- Roberts rejects Marbury v. Madison, and abdicates meaningful judicial review of Federalism and Separation of Powers, apparently thinking that elections are a good enough back-up, or check-and-balance. “Just settle it this November,” seems to be the strategy. We know that, by nature, Congress doesn’t self-limit its jurisdiction – by nature, it pushes to expand it. We know that, by nature, no President will scale back any Executive Branch authority – by nature, he tries to expand it. If the Supreme Court won’t enforce the limits, who will? Roberts seems to say, “Vote them out at the next election.” if that is the case, why do we need Marbury v. Madison at all? Why do we need judicial review at all, if elections are a sufficient check-and-balance.
- Roberts reduces the Supreme Court’s role to be simply another political player, rather than a referee. Whatever faction is in power, gets to invent the hypothetical law that will be rubberstamped. The actual law being appealed, becomes irrelevant.
- Constitutional Structure, like architecture, isn’t sexy or glamorous. There will not be a network reality show entitled, “Dancing with the Big Thinkers of Government Structure.” The Supreme Court is the only player in town to remind and instruct new generations of citizens about why the Structure is all-important. Roberts abdicated.
***
Roberts could have been a contender. Instead of the opinion’s unreadable moshpit of concurrences and dissents, Roberts could have simply and eloquently vindicated Structure and Diffusion, and reminded forgetful citizens of their critical – if not tantamount – effect upon our unprecedented rich lives, our cultural and heritage richness, and safety from enemies, and why (although tarnished) we are the beacon of the world.
Lawyers, law students and judges like to play the “what if” game. So let’s theorize a few cases that the future could hold for us, given the new Roberts Doctrines:
“Although it is not a proper exercise of the Coinage powers for the government to seize 18 year old males and imprison them without a trial, we note that under the war powers, the government could have drafted the young men into the military, sent them to war, where many would be killed. Therefore, we cannot say that the government’s incarceration of young men, without a trial, is necessarily unconstitutional, as the government could have just drafted them and they likely would have ended up in the same place.”
“The government’s eminent domain powers, could have been invoked in the taking of the buildings, for governmental purposes. Therefore, the government’s firebombing of every Federalist party office in the nation really is not a constitutional issue as far as the taking of the property is concerned.”
“The quartering bill could have recited that the government had declared a “war on poverty,” and since the government could easily have added those “war on poverty” words to the bill, this Court will assume that the Congress did so, and thus there is no constitutional infirmity with this new law that allows any government employee squat at any time without notice, in someone else’s vacation home.”
“While it is true that the President did not actually sign the bill, it is abundantly clear that he could have signed the bill at any time during the 10 day period, and thus this Court will deem the bill to be a validly passed law signed by the president.”
You get the picture. It’s the Structure, stupid.