Matthew Franck has defended Chief Justice Roberts’ opinion thusly:
I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds. That is not the same as an endorsement of its merits. … But I do think that people might, just might, give him some credit for doing his duty to the rule of law as he understands it.
Moreover, Mr. Franck says:
Every real difference between Roberts and the four joint dissenters comes down to … this. Which is the most compelling reading of the mandate — the most natural reading … or the most favorable reading of its language …?
The joint dissenters chose the first option, of the most natural reading. Roberts chose the second option, of the most favorable reading. This, for reasons he gives at length, strikes him as the soundest way to proceed, consistent with the judicial duty never to hold an act of Congress unconstitutional that need not be held unconstitutional if it can be saved on any plausible reading. [Emphasis in original.]
Lester Jackson, writing here, is not impressed with Mr. Franck’s analysis. He seems to think Mr. Franck has to simultaneously believe intellectually incompatible things — that Mr. Franck believes:
1. Congress constitutionally enacted what was unconstitutional. It had no power to impose the individual mandate per se, but it constitutionally exercised its tax power as a bludgeon to compel indirectly acceptance of what it had no power to compel straightforwardly — and despite its repeated and explicit denial that it was imposing a tax and would raise no revenue if everyone complied.
2. The Act was simultaneously not a tax and a tax — as stated by the dissent, “the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far[.]”
3. It is not the Court’s “job to protect the people from the consequences of their political choices,” except of course when it is the Court’s job, which is to not “abdicat[e] in matters of law.”
With all due respect, Mr. Jackson doesn’t have it quite right. In this article, I shall address only the first two of Mr. Jackson’s arguments. So, if I may carry the torch for Mr. Franck…
Let’s take point one — i.e., that Mr. Franck believes: