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…
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.”
Reading over the Roberts opinion, the opinion strikes me as quite conservative. The opinion starts from the premise that the federal government is a government of limited powers. The opinion goes on to reject the federal government’s power to regulate inactivity under the Commerce Clause. It then goes on to reject a broad reading of the Necessary and Proper Clause. The opinion also imposes new limits on the federal government’s ability to force the states to adopt federal programs, striking down the condition that Congress can withdraw all medicaid funding if a state refuses to go along with the medicaid expansion.
These sections of the opinion are all about about the need to narrow Congress’s power, and they impose new limits on federal power that have not been seen before. They nicely match what a lot of conservatives have been saying about the Affordable Care Act. Roberts even comes very close to using the broccoli hypothetical — he ends up using a generic example of “vegetables” instead of broccoli, but he’s singing the conservative tune on these parts of the opinion…
The result is an opinion that happens to please today’s liberals and annoy today’s conservatives, because the liberal law that was passed and that conservatives hate remains on the books. But the key opinion that leads to that result is not a liberal opinion; rather, it strikes me as a largely conservative opinion that just happens to get to a liberal result.
The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.
Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
If you were above all interested in the bill being struck down, it was mostly a loss. On the other hand, if you were more concerned about the qualitative expansion in the power of the government that the bill represented, it was definitely a win…
Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn’t think we could have one without the other, but now maybe we can.
After reading and stewing about it all day, I’ve concluded that what Roberts has done is fundamentally shift the constitutional debate away from the liberal assumption since the Woodrow Wilson era that an Imperial Presidency and supine Congress can pretty much do as they please so long as it’s covered by at least one of those fig leaves known as the General Welfare, Necessary and Proper or Commerce clauses of the Constitution…
Further, the holding that Obamacare passes constitutional muster if it is understood as a tax may be an even more significant victory for conservatives. To understand why, which of these two words sounds more positive? “Benefit” or “tax”? Who is more likely to prevail – the advocate offering a positive benefit without having to explain in any detail how it will be funded, or the advocate who right out front says your taxes have to go up but, trust me, you’re going to love this new benefit?
Roberts has forced the entitlement state to drop its pretense that government entitlements are intrinsically beneficial and concede the brutal reality that they are in fact the application of force to take from some to give to others.
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
“For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day,” Barnett said. “For those of us in this fight to preserve the limits of constitutional government, this is not a bad day.”
[T]he decision totally removes a growing left-wing talking point that suddenly they must vote for Obama because of judges. The Supreme Court as a November issue is gone…
With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.
It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.
The bitter part of this decision will now be addressed by the American people at the polls, where they can reject the imposition of this new judicially created “tax.” Indeed, the next president can even waive its collection!
From a constitutional perspective, however, we have not only dodged a big bullet; the national furor over the constitutionality of the individual insurance mandate may signal a turning point in constitutional law—one driven not by the courts but by the people themselves. We have seen such turning points before.