“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions…Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
—-Chief Justice John Roberts, in the introduction to his majority opinion in the case of National Federation of Independent Business et al. v. Sebelius, which upheld the Affordable Care Act on the grounds that the so-called “individual mandate” was a tax, not government-mandated commercial conduct.
The Chief Justice’s statement is what is called dicta, commentary in a Supreme Court opinion that is neither binding on future courts nor a substantive part of the decision. Dicta, however, often has great influence in shaping future cultural consensus, and we can only hope that the Chief Justice’s wise and ethical words stick.
He is talking about process and accountability, and what is necessary for our democratic republic to work, and, frankly, survive. Reading letters to the editor and web site comments about yesterday’s decision, I find the overwhelming civic ignorance and “the ends justify the means” obsession of the vast majority of the writers more than depressing. The Supreme Court decision did not “vindicate” the Democrats and President Obama—only positive outcomes from the law they rammed through the system using every obfuscation and trick in the book could begin to do that, and even then it might be impossible, at least from an ethical standpoint. The Supreme Court’s decision raised the serious question of whether the law was passed under false pretenses, a tax disguised as something else so as not to call attention to its violation of the President’s promise not to raise taxes on the middle class. Once the Affordable Care Act began traveling through the courts, the Administration began suddenly calling the individual mandate a tax—a term that was not used in the 2500 page law itself—because it recognized that its Commerce Clause rationale for the individual mandate was shaky. Some courts found the bait-and-switch cynical and offensive, and refused to consider it. The bait-and-switch was offensive, or should be to citizens who believe that the public should know the truth about the laws Congress passes, but Roberts properly held that it isn’t up to the Supreme Court to protect the public from the curs, liars and knaves they regularly elect to high office because “character doesn’t matter.” In a democracy, this is the public’s job. We are accountable. The Supreme Court doesn’t exist to protect us from our own laziness, lack of principles and stupidity. It exists to make sure that if our elected officials pass lousy, ill-considered and un-read laws that roll the nation ever closer to a national diet of moussaka, at least they did it within the bounds of the Constitution. If We the People decide to tolerate cynical, dishonest, incompetent leaders and representatives and the nation ends up like Stockton, California, well, at least one branch of government did its job to make democracy work.
In the end, it will have been the people who failed to uphold their part of the experiment. That’s what the Chief Justice was saying.
I wonder if anyone is paying attention.
Source: National Federation of Independent Business et al. v. Sebelius
Graphic: Linda Life
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