To Your Health
*Jeffrey Toobin will be speaking at The Common Good on July 19th, 2012. Click here to learn more about the event.
Jeffrey Toobin*, The New Yorker – When Chief Justice John Roberts emerged from behind the red curtain and took his seat at the center of the Supreme Court bench last Thursday, he did not look like his usual self. The brisk confidence of the Midwestern burgher was absent, replaced by a more sombre mien. His eyes were red-rimmed and downcast, his voice nearly a mumble.
The announcement of the Court’s decision in National Federation of Independent Business v. Sebelius was clearly an unhappy duty for him. It’s easy to see why. By affirming the constitutionality of the Affordable Care Act—the legislative cornerstone of Barack Obama’s Presidency—Roberts was disappointing those closest to him. Roberts was a professional Republican: a staffer in the Reagan and Bush I Administrations, a judge and a Justice thanks to Bush II. And here, alone and exposed, Roberts joined with the Court’s four liberals to dash the Republican Party’s most fervent wishes. It was a singular act of courage.
One hopes, then, that it is not too churlish to point out that this should have been an easy case. The core dispute before the Court involved the portion of the A.C.A. which requires all Americans, eventually, to have health insurance. Failure to comply with the so-called individual mandate subjects scofflaws to a modest fee, to be paid when they file their tax returns.
The basic idea for the mandate had bounced around policy circles for years, usually with Republican sponsors. As governor of Massachusetts, Mitt Romney implemented an individual-mandate system; as President, Obama based his proposal, more or less, on Romney’s. For two decades—from the mandate’s début in a policy proposal released by the right-wing Heritage Foundation to shortly before Congress voted on the A.C.A.—no one suggested that there was any constitutional problem with the idea. This is because there isn’t one.