John Steele Gordon
06.28.2012 - 11:20 AM
Well,
the Supreme Court, as it has so often before, surprised nearly everybody. Most
people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the
whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and
Thomas. The four liberal justices would have upheld the whole act. It was Chief
Justice Roberts who made all the difference, and his idiosyncratic reasoning
will have profound constitutional implications far beyond ObamaCare. Here are
three, a distinctly mixed bag.
1)
He limited federal power under the Commerce Clause. It is not constitutional to
require people to buy a product. The clause is limited to regulating commerce
that is, not commerce the government wants to see. That’s a big deal, because had
the requirement been upheld, the power of the federal government under the
Commerce Clause would have become essentially unlimited. As was pointed out in
oral argument, you could be required to buy broccoli.
2)
He greatly expanded the taxing power. Never before that I know of, has a federal
tax been placed on inactivity. If you buy something, you pay a sales tax. If you
earn income, you pay an income tax. If you do business as a corporation, you pay
an excise tax. Now, if you don’t buy health insurance, you pay a tax on not
doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not
agreeing with the president?
3)
He considerably limited federal power over the states. The Tenth Amendment has
been largely a dead letter for decades, declared a mere truism. (In which case,
why did the Founding Fathers include it?) But 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.
Judging
by the signs being carried, the overwhelming majority of the crowd outside the
Court this morning was anti-ObamaCare. With the upholding of the mandate,
ObamaCare survives. For now. But I suspect the already energized anti-Obama
forces in this year’s election will now be supercharged. The only way to get rid
of this deeply pernicious piece of legislation will be to get rid of Obama.
Requiring all candidates for federal office to sign a promise to repeal
ObamaCare as a precondition of support would be a starter.
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