The Clever Wimp | Eastern North Carolina Now

   Publisher's note: The article below appeared in John Hood's daily column in his publication, the Carolina Journal, which, because of Author / Publisher Hood, is inextricably linked to the John Locke Foundation.

    RALEIGH     When Chief Justice John Roberts released his majority opinion upholding the constitutionality of President Obama's health care bill, the reaction among conservative and libertarian lawyers, scholars, and policy activists was mixed.

    Although most believe ObamaCare to be bad public policy and were thus disappointed to see it get another, however temporary, lease on life, they were not in agreement about either Justice Roberts' motivation for joining the four left-wing justices in upholding it or the long-term consequences of his complicated decision.

    Some argued that Roberts had caved to political pressure by the president and his leftist allies, much as President Franklin Roosevelt managed to intimate the U.S. Supreme Court in 1937-38 to abandon its enforcement of limits on federal spending and capitulate to his unconstitutional New Deal regulations. In Roberts' decision as well as the dissent, there are clues suggesting that the chief justice had originally sided with the four conservative justices to throw out ObamaCare altogether, then changed his vote later.

    Essentially, said these critics, John Roberts proved to be a wimp. He caved because he cared more about what the establishment thought of him than about doing what was right.

    But other conservatives and libertarians, including Randy Barnett and others who helped get the lawsuit going in the first place, concluded that Roberts may have engineered an outcome that will prove to be a Pyrrhic victory for the Left. They point out that Roberts was part of a five-justice majority that rejected the Obama administration's chief justification for the individual mandate - that it was a permissible exercise of Commerce Clause regulatory power - and that Roberts was part of a seven-justice majority that rejected the administration's broad assertion of power to coerce states into participating in the bill's Medicaid expansion.

    By finding an alternative means to save ObamaCare, the idea that the individual mandate is really a tax, the argument goes, Roberts prevented the decision from being seen as a partisan attack on the president's health care policies and thus actually strengthened the precedential value of the Court's rulings on the Commerce Clause and federalism. Essentially, said these observers, John Roberts proved to be a clever fox playing a long-term strategy against the continued growth of federal power.

    So, which one of these arguments is correct? I'll go with a combo: I think John Roberts is a clever wimp.

    That is, I think he may well believe that he has engineered a legal compromise that gives the president a short-run victory but erects new barriers to federal power in the long run. Roberts may even suspect that by forcing the Left to defend ObamaCare and future assertions of federal power as tax increases, the American public will revolt and impose a political constraint instead of a constitutional one. Furthermore, by redefining the individual mandate as a tax measure, the decision may make it even easier for a potential President Romney and Republican Congress to repeal it in 2013 via reconciliation, thus obviating the need for a 60-vote majority in the Senate to overcome a filibuster.

    But I also think that Roberts concocted these rationalizations after the fact. When it came right down to it, months of relentless, preemptive attack on his personal reputation got to him. He flinched.

    To the Left, this entire question of whether John Roberts believes his own elaborate constitutional rationalization is irrelevant. Progressives believe that the ends justify the means. They don't care, or perhaps don't yet realize, that they lost the central legal arguments in the case. Because they elevate outcome over process, they thought the court case was about health care. So they are gleeful that ObamaCare survived. And many don't yet realize that it has just become a more difficult policy to defend in November, because the only way to uphold its constitutionality was for Roberts to redefine the mandate as a massive middle-class tax increase - contradicting President Obama's oft-stated claims and promises.

    In reality, of course, the court case wasn't really about health care. That's a policy issue best settled by the political branches. The legal case posed the question of whether the enumerated-powers doctrine remains a meaningful limit on the exercise of federal authority.

    Roberts seems to think he has cleverly, even surreptitiously, answered this question in the affirmative. I guess we'll just have to see. Still, the simplest explanation is usually the correct one: Roberts failed to do his job. He put personal motives above his responsibility to the law. He's a wimp.

    Hood is president of the John Locke Foundation and author of Our Best Foot Forward: An Investment Plan for North Carolina's Economic Recovery.