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Editorials

Roberts' Rule: Conservative Double Cross or Constitutional Brilliance

By Bill Britt

Alabama Political Reporter

MONTGOMERY—Much has been made of the ruling by Chief Justice John Roberts since last Thursday when he sided with the liberal wing of the court to uphold the key provisions in the Affordable Care Act.

For most conservatives Roberts’ ruling has been seen as a betrayal of principle, a death blow to the republic and everything in between.

Historically, such knee-jerk hyperbole is usually wrong and sighting something as a work of an activist judge generally means that the jurist didn’t rule the way a certain group wanted them too.

But what if in Chief Justice Roberts 59-page opinion there is a means by which future courts will be able to rule more narrowly on laws using the Commence Clause as their basis and what if his “Gun to the Head” opinion can be the opening needed to not only stop the federal government from forcing unconstitutional mandates on states but even allow states to overturn longstanding laws?

What if all the anger against Roberts is misplaced political posturing and not a rational assessment of his opinion at all?

What if the Roberts' ruling is the most brilliant Supreme Court ruling in 80 years--not only limiting the Commerce Clause but also a coups de grâce to unwarranted federal powers?

Soon after the court’s ruling Neal Katyal, the Justice Department lawyer who argued for the Obama administration in the circuit courts, wrote in "The New York Times," saying the Medicaid ruling “contains the seeds for a potential restructuring of federal-state relations.”

“This was the first significant loss for the federal government’s spending power in decades,” wrote Katyal. “The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extraconstitutional limit on that power is a worrisome development.”

A portion of the Roberts opinion which was joined by Justices Stephen Breyer and Elena Kagan said that the federal government had gone too far when imposing requirements on states as a condition of accepting federal dollars.

This type of finding by the justices' writing for the majority has not been present since FDR and the “New Deal.”

In his opinion Roberts said the federal government “in this case the financial ‘inducement’ Congress has chosen … is a gun to the head.”

While the opinion dosen't categorizes a clear test for when new federal requirements cross that line it did say that one does exist.

By saying that the government had gone too far with its decades old carrot-and-stick approach to forcing states to enact federally mandated programs or forfeit millions in federal dollars, Roberts may have set up a way that forever changes how much if any pressure Washington, DC, can place on the states.

The right to opt out of the Medicaid expansion could set up a scenario where by states could offer legal challenges to other such programs.

While not certain, would not the Clean Air Act fall into this category? The law mandates that states implement programs that meet national pollution limits or they can lose federal highway dollars. Does this not fall under the Roberts' finding?

What about No Child Left Behind, or the Americans' with Disabilities Act or even Title IX?

Perhaps this is expanding the scope of the court’s opinion too far, but is that not how these things begin, by case precedent?

I am not a lawyer, but I have pretty good reading comprehension skills and I see an opening for states like Alabama to begin to challenge the powers of the feds to impose their will using a carrot and a stick.

So, perhaps my conservative friends should look at Roberts not as a traitor but as the man who took a lemon and gave the states the tools to build a lemonade stand. One that can’t be controlled from Washington.

 

 

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