The opinions on the SCOTUS Obamacare ruling are coming fast and furious and they seem to be pretty split. (By the way, I’m talking about conservative pundits, the only ones who opine in good faith.)
We start with Rush Limbaugh:
The administration and the Congress said, “No, it’s not a tax!” Arguing before the court, they said, “No, it’s not a tax!” Then a couple of whispers, “Yes, it is a tax.” The chief justice says (paraphrased), “I can’t forbid this. It’s not our job to protect the people from the consequences of their political choices. I gotta find a way. Congress wants this, so I gotta find a way to make it happen. Okay, we’ll call it a tax, and that makes it perfectly legal.” So today the sovereign nature of the individual wasn’t just weakened; it was eviscerated.
Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
There’s nothing about the Obamacare decision that is redeeming. Nothing. I will talk about it at length on my show tonight – 6 PM eastern. There are lawyers and political operatives spinning this decision, but don’t buy any of it.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time, the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.
Curiouser and curiouser.
MORE: Some diverse opinion on the Spectator Blog, but mostly anti-.
NRO Editors: Roberts’s Folly.