I find myself in a very odd position as I consider the Court's ruling on ObamaCare. When the first constitutional challenges were filed, I was not inclined to support them. That is because I am a judicial minimalist. I don't like it when big policy questions are decided by the courts rather than by the political branches.
On the other hand, the Court must uphold basic constitutional principles even when doing so effectively decides big political questions. I was persuaded that the expansion of the Commerce power that was the stated basis of the mandate was inconsistent with the principle of limited government. I thought that the Court should strike down the mandate on those grounds.
It seems I was right both times. I am pretty sure that what led Chief Justice Roberts to side with the court's left wing was his preference for judicial minimalism. He just didn't want to the Court to decide this issue by judicial fiat. I could be wrong about that, but I would rather not believe that he succumbed to the threats made against the Court.
There was, apparently, a five vote majority against the mandate on Commerce Clause grounds. The argument made in favor of the mandate was that everyone is part of the market for medical services and so requiring everyone to purchase health insurance (who is not provided it by the government) is merely a regulation of that market. However, the reason that everyone is part of that market, whether they like it not, is because we in fact offer health care to everyone whether they ask for it or not. Can government regulate any aspect of private behavior merely by extending a benefit relevant to that behavior and thus roping someone into a market? If so, then government's power over private conduct is indeed without limits.
Roberts and the right wing of the Court seem to agree. To uphold the mandate, Roberts introduced a new argument: that the mandate was a simple exercise of the tax powers. I won't consider that argument now.
There is no doubt that this was a very big win for the Obama Administration, if only because a loss would have been a disaster. If the Court had struck down the whole act, it would mean that most of Obama's first term in office was wasted. It also gives Obama something he dearly lacked up until now: a rational for reelection. I will nominate judges who vote to uphold liberal legislation. See how important that is!
On the other hand, this outcome exposes the Administration and Democrats generally on a number of fronts. Proponents of ObamaCare have vociferous denied that the mandate is a tax. That question has been settled. It's a tax or otherwise it is unconstitutional. It is not a small tax, either; it will count as one of the largest tax increases on record. Republicans will probably point that out. It is, moreover, a gargantuan tax increase on behalf of a piece of legislation that remains very unpopular. In his speeches so far, the President has tried to direct attention away from the core of the act and toward its more palatable aspects. That may be harder now.
Conservatives are in fact rather divided on the outcome of this case. Some view is as a calamity, and it may well be that for conservative causes. See Powerline. A very large expansion of governments regulatory and tax powers has survived a Court challenge. It won't be easy to undue that, even if Republicans win big in November.
Some conservatives think that Chief Justice Roberts, like Chief Justice Marshal in Marbury v. Madison, won the war by conceding the battle. See George Will and Jay Cost. He upheld the mandate, but forced everyone to recognize it as a massive tax increase. He put together a majority that limited Congress's power under the Commerce Clause. No, Congress can't compel you to buy something you don't want just because it thinks it's something you should have.
Roberts also struck a blow against Congress's power to compel the states to behave the way Congress wants them to. Here is a comment from John Steele Gordon at Commentary:
Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.
Yes, that is a big deal, if the Court maintains it.
I was hoping that the Court would strike down ObamaCare. I view it as a monstrosity. Part of it already collapsed under its own weight before it was ever implemented. Some of the consequences have been delayed by hundreds of wavers, issued by an Administration that wanted to delay the inevitable until after the election. The President solemnly promised us that if we like our healthcare we can keep it. Either he was ignorant about his own bill or he was lying. He sold the bill as a means of reducing health care costs and thus restore fiscal balance, but he didn't insist on any measures that would really reduce health care costs. No one thinks that this bill will lower the federal deficits. No one can yet know how it will work.
All that said, Republicans may well benefit from the fact that we will learn more about ObamaCare and how it really will work. I was well prepared for seeing ObamaCare upheld. I was very surprised by how gratifying the loss was.
ps. The most flattering view of Robert's action comes from Sean Trende. Trende elaborates on my comparison with Marbury.