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Guest Article

"... A Menace to the State"

By Alvin D. Lurie
February 20, 2013

The full quotation, of which the above title is a segment, goes "Every law not based on wisdom is a menace to the State." It is graven in stone on a pillar outside the entrance to the storied courthouse of the New York State Appellate Division on East 25th Street in Manhattan, and it speaks directly to the message of the following little essay. The quotation appears under a statue of Moses, the lawgiver (so called, as the bearer of the tablets of the Ten Commandments handed to him by God on Mt. Sinai for delivery to the Israelites at the foot of the mountain many millennia ago). Its words particularly resonated with me as I entered the courthouse recently, because it foreshadowed a remarkable piece that appeared on the editorial page of the Wall Street Journal last month, intriguingly titled "A French Lesson for John Roberts."

It is not my practice to go to the editorial page of the Wall Street Journal for legal or other insights or, even less so, to biblical sources. But the January 5-6 WSJ Weekend Edition was an absolute winner, with not just one, but two, top-notch editorials. The lead editorial, titled "The Stealth Tax Hike," is a penetrating analysis of just a few of the steep tax increases that, without notice in the press or in the TV talk shows, were agreed to in the last minutes of the 11th hour of the negotiations to avert-- temporarily at least -- the tax components of the Fiscal Cliff. Its subject is worthy of extended commentary, and I expect there will be much of that in the months to come as the aftermath-of-the-Cliff chatter continues to dominate the air waves and print columns.

The editorial below that lead editorial in the Journal, however, about a "French lesson" for Mr. Roberts, touches on a theme that surprisingly has not been discussed and deserves more public attention. Its title is eye- catching, and has a je ne sais qua lilt to it. Was this to be about the Chief Justice of the Supreme Court, I wondered? That John Roberts? I had myself written about him in several articles, and had taken a pretty sharp jab at the C.J. (although without the French connection), criticizing his opinion for the majority of the Court that upheld the constitutionality of the Affordable Care Act. I suspected that might also be the tenor of the WSJ piece.

Surprisingly I hadn't seen in the usual venues much criticism of him and his opinion -- and the bizarre circumstances surrounding its composition that was the focus of my writing. The prospect of a print-companion-in-arms at the WSJ intrigued me; and I eagerly commenced reading the editorial (perhaps more accurately an op-ed because, although printed under the lead editorial, it was signed by a member of the WSJ editorial board). After a few terse references to the French Napoleonic Code and the Anglo-American common law tradition, its author had quickly cut to the chase in no uncertain terms:

"... in 2012, when the high courts of the United States and France were presented with constitutional challenges to major pieces of legislation, it was the integrity of the French court that stood out. There's a lesson here for the U.S. Supreme Court Justice John Roberts."

That's laying it on the line, I thought.

In my pieces I commented on the strange 180-degree reversal of course by the Chief Justice late in the deliberations of the Justices, when he switched sides from the Conservative majority to the Liberal minority that then became the majority with his joining them. I questioned but did not impugn his motives -- nothing about a lack of "integrity" or other admirable judicial qualities. I did, however, cite but not substantiate a rumor that had circulated, to the effect that in consummating his switch, Justice Roberts had abandoned his first draft of an opinion prepared to announce the majority view of the Court that the ACA could not constitutionally find support in the Commerce Clause. Suddenly and unexpectedly finding themselves in the minority, his Conservative colleagues quickly co-opted the initial Roberts draft and reworked it into the dissenting opinion. Most unusually, the dissent carried no named author, simply noting the concurrence of the four conservative justices. That was a clue to, if not probative of, its alleged curious provenance.

At the same time Chief Roberts then penned a new majority opinion upholding the statute, but not grounded on the Commerce Clause, rather on Congress' constitutional Taxing and Spending power under Article 1, Section 8. That had been a throwaway position -- mentioned parenthetically but without conviction by some commentators -- dubiously predicated on a sanction for not buying health insurance, that the statute repeatedly called a "penalty" (doubtless on orders from the White House, lest the ACA be considered a tax on the lower and middle classes, who were so essential to the President's reelection hopes).

The WSJ piece, in impugning the judge's integrity, cited, by way of contrast, the recent decision of France's Constitutional Court striking down the much publicized 75% tax on millionaires that President Francois Hollande had initiated. That tax had gotten attention far beyond the French borders because of having driven some internationally known French celebrities to other countries to escape its stinging impact. The decision of the French court was not that the percentage was too high, but that the legislation was sloppily written, unfair and unconstitutional because it would enable households earning the same income to pay vastly different rates depending on how the income was divided among household members. So the French court effectively sent the law back for a rewrite, which the government has since agreed to do.

The WSJ editorial compared and contrasted that decision with the landmark ruling of the U.S. Supreme Court this past June upholding the constitutionality of Obamacare, comparable in that each case involved a signature initiative of a duly elected government, whose constitutionality was rejected by a majority of the judges of the two highest courts. But the French court struck down the law, forcing the government to reconsider and rework it. The Chief Judge of our court found a questionable way to sustain the U.S. legislation, which as noted above had been predicated by the Congress on the Commerce Clause. That foundation was rejected by five of the nine justices, including Roberts. But, as the Journal piece observed, "In a shocking ruling, Chief Justice Roberts sided with the Supreme Court's four liberals by effectively rewriting the legislation himself to fit under the Constitution's taxing power."

That is not an exactly accurate account of the line-up of the Supreme Court judges, for it suggests that the four liberal judges also supported reliance on Congress' Taxing power for constitutionality of the Affordable Care Act, and that Roberts joined them to sustain the law. The fact is that Roberts was the initiator of that position, and was the only justice on the Court who purportedly truly believed the statute derived its legality under the Constitution from the Taxing Clause.

The four liberal judges expressed their view not in the majority opinion, but in a separate opinion that the statute properly rested on the Commerce authority of Congress, and concurred only with the judgment of the Roberts opinion that the law was constitutional. The author of that separate opinion, Justice Ruth Ginsburg, meticulously labeled it "concurring in part, concurring in the judgment in part, and dissenting in part." In her opening paragraph she quickly made clear her sharp dissent from the Roberts opinion's dismissal of the Commerce foundation in these words: "This rigid reading of the Clause makes scant sense and is stunningly regressive." Two sentences later she characterized the Roberts opinion as "the Chief Justice's crabbed reading of the Commerce Clause," and in a final barb referred to his opinion as "the Chief Justice's Commerce Clause essay."

The dissenting conservative block of justices, who agreed with nothing in the Roberts opinion, were even harsher in their criticism. As with the WSJ article's contention of Roberts "effectively rewriting the legislation himself to fit under the Constitution's taxing power", Justice Scalia, author of the dissenting opinion, writes unequivocally:

"The Court today decides to save a statute Congress did not write.... It [the decision of the Court] amounts to a vast judicial overreaching. It makes enactment of sensible health care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions."

It is doubtful that Congress will take another stab at health care reform legislation anytime soon, given the outcome of the recent elections. Perhaps when Justice Scalia wrote that in June, he could reasonably see the prospect of a Republican victory in the White House or the Senate, if not both; and either such outcome would have very likely have led to the introduction of such legislation. Writing in the Journal in January, its editorial board member could more reasonably pronounce that, unlike the French government that had agreed to rewrite its new 75% tax law," there would be no do-over for the legislative branch here."

Secure in that prediction, the WSJ piece concludes, "[A]pparently only the French court remembered that the very point of constitutional government is to place limits on the will of temporary majorities." Whatever prompted the Chief Justice to engage in his bizarre opinion juggling, I submit it was not a case of amnesia. From the earliest days of the Constitution to this day, chief justices from John Marshall to John Roberts have known and often exercised their signature balancing power under our system of government, as the final arbiter of the constitutionality of the laws of Congress.

Alexander Hamilton, in the Federalist Papers, stated it as cogently as it can be put:

"There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution can be valid."

A Summing Up

The decision of the Supreme Court upholding the constitutionality of the Affordable Care Act, resting on Congress' Taxing power under the Constitution, is largely the act of one man, its Chief Justice. With the four liberal justices of the Court staunchly favoring its legality under the Commerce Clause and the four conservative justices as staunchly opposed to its constitutionality on either ground, Justice Roberts switched from his accustomed berth in the conservative camp (in the process abandoning an opinion he is reputed to have written rejecting the Commerce Clause) in order to uphold the law by allying with the liberal bloc under a rationale that even they were not happy with. Justice Scalia wrote for the dissenters that he thereby "saved a statute Congress did not write."

Historians must search more deeply for the reason that Justice Roberts, who knows constitutional law as well as any legal scholar today, was moved to rest the most major social legislation of our time on a foundation so vulnerable to challenge. A law whose cost and substance have engendered so much controversy from its conception, that can only increase as the burdens that come with its benefits become more widely known and felt, is almost sure to be challenged in court again; and the slender "tax" reed on which it now rests will be put to the test.

Copyright 2013, A. D. Lurie
Alvin D. Lurie is a practicing pension attorney. He was appointed as the first person to administer the ERISA program in the IRS National Office in Washington. He is general editor of Bender's Federal Income Taxation of Retirement Plans (LexisNexis), a 2-volume treatise, and he is also editor of the annual compendium of articles published under the title New York University Review of Employee Benefits and Executive Compensation (LexisNexis). Mr. Lurie is the first recipient of the Lifetime Employee Benefits Achievement Award sponsored by the Employee Benefits Committee of the American Bar Association Tax Section. He can be contacted at Alvin D. Lurie, P.C. in Larchmont, New York, at (914) 834-6725 or via email: <>. He is also of counsel to The Wagner Law Group in Boston.
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