Dershowitz: The Healthcare Decision Is Good in the Short Term, Questionable in the Long Term

Thursday, 28 Jun 2012 01:56 PM

By Alan Dershowitz

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Alan M. Dershowitz's Perspective: When former President George W. Bush nominated John Roberts to become Chief Justice of the United States, a newly elected senator named Barak Obama voted against his confirmation.

Now Chief Justice Roberts has helped save President Obama’s signature legislative achievement: The Affordable Health Law that requires all Americans to buy health insurance or be penalized.

Roberts did so on a ground that was categorically eschewed by President Obama: namely that the penalty for failing to buy insurance constituted a new tax.

Presidents don’t like to be held accountable for increasing taxes, and President Obama has repeatedly denied that his health law includes a tax increase. But his lawyers, arguing in favor of upholding the law, provided the court with alternative grounds on which to uphold it.

One of those grounds included the power of Congress to tax. The other was the power of Congress to regulate business under its constitutional authority to legislate about matters that affect interstate commerce. The Majority ruled that Congress lacked the power under the commerce clause, but had the power under the taxing clause.

Justice Roberts went out of his way to characterize the penalty for not buying insurance as a tax increase for those who have to pay the penalty.

This characterization accomplished three possible goals for Roberts: first, it allowed him to continue his assault on the commerce clause as a basis for increasing government power over business; second, it allowed him to impose a political cost on Obama by declaring his signature law to be a politically unpopular tax increase — a point that was immediately exploited by Republican leaders; third, it allowed him an opportunity to enhance the credibility of his court.

Constitutional scholars will parse the words of the various opinions and debate whether they make sense as a matter of law. Politicians will seize on particular phrases to make partisan points. Students of the Supreme Court will try to discern the motives of the Chief Justice for abandoning his conservative colleagues in this case and joining with the more liberal wing of the court.

The bottom line, however, is that Americans — even those who oppose the law and disagree with the decision upholding it — will benefit enormously from this ruling.

It will bring the United States into the 21st Century by providing better healthcare to more people without regard to their ability to pay for its astronomical costs.

The decision itself bears all the hallmarks of a political compromise, as did the legislation itself. Two liberal justices went along with Roberts’ declaration that parts of the statute would be unconstitutional.

Some will suspect that this may have been the result of horse-trading: We will give you our vote on part of the law in exchange for your vote upholding the rest of the law. Others will surmise that Roberts, as Chief Justice, may have voted as he did in order to enhance the diminishing credibility of the court, which has been accused of increasing partisanship since its discredited decision in Bush v. Gore back in 2000.

The reality is that the high court is a political institution, and has always been such. More recently, however, it has been perceived as a partisan political institution, several of whose justices vote according to party allegiance.

The healthcare decision will go a long way in the direction of negating this perception. The short-term impact of this important discussion will be positive for those who believe in the power of the federal government to help solve the problems of society through progressive legislation, such as the Affordable Health Law.

The long term-impact, however, may be to curtail the power of the federal government to act under the expansive reach of the Commerce Clause.

It was the Commerce Clause — not the Taxing Clause — that provided the basis for the New Deal legislation of the 1930s.

There are areas in which the power to tax will not support progressive legislation. It remains to be seen how far Chief Justice Roberts will go in upholding legislation based on the taxing power. It also remains to be seen whether politicians will be willing to risk being accused of raising taxes in order to have their laws upheld.

The Affordable Health Care decision marks an important event in our constitutional history, but its full impact remains to be seen.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. Read more reports from Alan M. Dershowitz — Click Here Now.

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