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Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate

2:05 PM, Jun 28, 2012 • By ADAM J. WHITE
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In September 2009, President Obama disagreed vehemently with the notion that the Affordable Care Act's individual mandate was a tax: "A responsibility to get health insurance is not a tax increase," he told George Stephanopolous. And even on the eve of oral argument, the president's Office of Management and Budget told Congress that the mandate was not a tax.

John Roberts

Nevertheless, the Justice Department made precisely the opposite argument in the federal courts, and that argument ultimately persuaded the Supreme Court. Today, the Court held that the individual mandate is a lawful exercise of the Constitution's tax power.

The decision was 5-4—or, more accurately, 4-1-4. Chief Justice Roberts's lead opinion created a 5-4 majority holding that the individual mandate was not a constitutional exercise of the Commerce Clause power, and a 5-4 majority holding that the mandate was a constitutional tax.

The decision's details will be parsed endlessly, in terms of both legal doctrine and political ramifications, but in the end it stands for something much more historically significant.  

Since Roberts's appointment as chief justice in 2005, commentators have noted time and again his appreciation of the Court's history, and specifically his appreciation of Chief Justice John Marshall. Roberts occasionally highlights the point himself.  

At his confirmation hearings, he pointed not just to Marshall's Commerce Clause opinions, which "were important in binding the Nation together as a single commercial unit," but also to Marshall's interpretation of the "General Welfare" (i.e., taxing and spending) Clause, as a grant of power to Congress "broad enough to confront the problems that in Chief Justice John Marshall’s case were confronted by a young nation and helped to bind it together as a nation and broad enough today to confront the problems that Congress addresses."

Of course, the Marshall comparisons did not end with his confirmation. Roberts himself occasionally noted that he looked to Marshall for inspiration. "I’ve been reading a lot of biographies of chief justices and learning a lot about them," he told an interviewer in 2007.  

Marshall's shadow loomed large throughout the Obamacare case. And in his opinion today, Roberts himself acknowledged that, opening his opinion with Marshall's seminal lines from Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden.

But today's decision connects Roberts to Marshall not because of what Roberts said, but because of what Roberts did. Roberts's decision today echoes Marshall's defining moment in Marbury v. Madison, in which the chief justice handed the president a nominal victory, but in so doing also confirmed the Constitution's limits on the federal government's power.

In Marbury, Marshall nominally ruled in favor of President Jefferson, holding that the Court would not overturn Jefferson's controversial decision to rescind appointments made by his predecessor, President Adams. But by asserting the Court's power to make even that decision, Marshall firmly established the Court's power of judicial review, a fundamental protection for the Constitution's limits on the federal government.

The chief justice's opinion today accomplishes a similar feat. Roberts concludes that Obamacare's individual mandate is a "tax," and therefore a lawful exercise of the Constitution's taxing power. But by also concluding that the individual mandate is not a lawful exercise of the Commerce Clause power, Chief Justice Roberts creates a five-justice majority that thwarts President Obama's attempt to create an unprecedented, unlimited expansion on the federal government's regulatory power.

And so Chief Justice Roberts silences those on the left who would (and did) accuse him of "judicial activism," yet he reaffirms the Commerce Clause's limits, and he simultaneously hands President Obama a difficult political choice: The president can now claim vindication over the mandate, but only by agreeing that the mandate is an immense increase in Americans' income taxes.

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