I’ve been reading the “The Roberts decision is not as mad and bad as you think” essays this evening. I offer you this by Joshua Hawley, this by Paul Rahe and this by Timothy Dalrymple. A positive way of looking at today’s SC decision is to say that we never really want, as conservatives, to depend on Supreme Court decisions about law, anyway. Using the courts to eliminate laws we don’t like is not the right way to play politics in America. That’s what the other guys do.
So let’s look at the Roberts decision like this; he is not saying that Obamacare is good law or even good policy, in fact he strongly suggests it is not. He is saying that the individual mandate is a faulty way for Congress to tax people and that what it does is tax, but without calling that tax a tax. Congress has the power to tax, no doubt about it. However, taxing is politically unpopular. This, of course, is why the last Congress refrained from calling for taxation for national healthcare reform. From Dalrymple, “Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation.” From Hawley, “Making the mandate a tax has at least one other effect. It makes repeal easier. Now that the mandate has been deemed taxation, it can likely be jettisoned through use of the reconciliation process — meaning the Senate will need to muster only a bare majority for repeal, not 60 votes.” From Rahe, “In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.”
And that’s the good news. I hope those guys are correct about this.