Roberts and the health-care tax

Judges can say things politicians can’t.

So it was left to U.S. Chief Justice John G. Roberts to use the three-letter word for the individual mandate that President Barack Obama dared not utter during the debate over health-care reform: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” wrote Roberts in today’s (June 28) historic ruling upholding the law. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Thus the mandate, and Obama’s signature legislative accomplishment, stands. This is the best result, for the court and the country. It is not, however, the final word. With the law’s constitutionality affirmed, the debate will turn again to the political arena.

Much of it — most of it? — will not be edifying. At least it will be in a more appropriate venue.

From a constitutional standpoint, as Roberts noted, the court owes Congress “strong deference” when it legislates on matters of national economic policy. The first six pages of his opinion amount to a civics lesson about the wisdom of judicial restraint.

From a policy standpoint, the law will improve the lives of the 50 million or so Americans without health-care coverage, and provide security for the tens of millions more who already have it but fear losing it. The court recognized the centrality of the mandate and legitimized it. The law also represents a real attempt to rein in runaway health-care costs, which threaten economic growth and the federal budget.

Roberts himself, whose loyalty to the conservative political cause was called into question within minutes of the decision’s release, deserves no small amount of credit. To overturn the law would have been a bald act of judicial activism in the midst of a presidential campaign.

Decades from now, maybe we’ll read the behind-the-scenes story of the negotiations that brought Roberts into an alliance with the four liberal members of the court. (News flash: They’re not politicians, but Supreme Court justices do play politics.) Until then, opponents of the law may take solace in that Roberts’s opinion rests not on the Commerce Clause — Congress’s power to regulate trade among the states — but instead under its power to “lay and collect taxes.”

Conservatives can be expected, if they haven’t already, to cite this decision the next time Congress tries to use the Commerce Clause to justify some regulation.

Another aspect of the decision that opponents of the health-care law will probably cite is how closely it divided the court. One of the purposes of the judicial branch, as we have said, is to provide clarity to the other two. When four justices of the Supreme Court issue an opinion saying a law should be found “invalid in its entirety,” they provide opponents of the law with a valuable sound bite, if not a legal rationale.

About those sound bites: There will be a lot of them between now and Election Day.

Republican presidential candidate Mitt Romney, reacting to the decision, said the law “was bad policy yesterday; it’s bad policy today.” House Majority Leader Eric Cantor announced a vote for July 11 to repeal the law.

For his part, the president hailed the decision and expressed a desire not to “refight the political battles of two years ago.” That may be overly hopeful.

Much of the law remains to be implemented, and it will be refined (definitely), improved (ideally) and debated (certainly) in the months and years ahead. Health care is almost a fifth of the economy and will remain a political issue as well as a policy challenge. We are not telling the president anything he doesn’t know.

This continuing debate may not have the drama of a Supreme Court decision announced at 10 a.m. on the last day of the term to cameraless courtroom. But at least it will not have to contend with the premise that Obamacare is unconstitutional or that Congress does not have authority to legislate in this area. For that, the president may want to send a thank-you note to the chief justice.