Obamacare, particularly its requirement that individuals purchase health insurance, is clearly constitutional. As Roberts wrote in his majority opinion, the federal government can penalize those who refuse to buy coverage because the penalty is basically a tax — and the Founding Fathers gave the government the power to tax.
This ruling is most inconvenient for Mitt Romney and the GOP. They were stoked to celebrate the end of Obamacare and frame the decision as proof of a purportedly failed presidency, and yet Obama was rescued by George W. Bush's most prominent appointee. This was not part of the Republican game plan; the GOP didn't anticipate that the chief justice would eschew Fox News' talking points and rely on a truly strict construction of the law and the Constitution.
It's a stretch to suggest that Roberts sided with the four Democratic appointees and gave Obama's law a bipartisan imprimatur out of concern for his legacy, fear of backlash from those who already view the high court as an anti-Obama encampment, or a desire to rebuild the court's image as an apolitical institution. Granted, he may well have entertained some of those thoughts; he's human, after all. He probably didn't relish the prospect of becoming the first chief justice in 75 years to overturn a historic presidential legislative achievement (as when a conservative court rejected several of FDR's New Deal laws).
But the bottom line was Roberts' legal scholarship, which trumped the standard conservative rhetoric about the coverage mandate amounting to the "death of freedom." The key passages began on page 31: "[T]he mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress' constitutional power to tax."
Conservatives have contended since that penalizing Americans who refuse to buy coverage is just an underhanded (and unconstitutional) way of forcing them to comply. But Roberts rejected that argument as well. The tax on noncompliance is clearly designed to change behavior, he wrote, but so what? Taxes do that all the time:
Although the tax "will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. ... Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns." That the health-care reform law "seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power."
Most important, Roberts cited numerous high court decisions that have validated the use of taxes to "influence conduct." That's what conservative legal scholarship is supposed to be about: respecting precedent, as Roberts promised to do during his confirmation hearings. Indeed, he quotes a decision from 1895 in support of Obamacare: "Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."
So what happens now? We are in the midst of a presidential campaign, after all.
Having done his duty for the Constitution, Roberts wrote: "Members of this court ... 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."
That's an opening for Romney to campaign anew against Obamacare. He'll vow to "repeal and replace," even though he won't say how or with what. In the meantime, uninsured Americans can thank John Roberts.
Dick Polman can be reached at email@example.com and found on Twitter at @dickpolman1.