Any More Such Victories, and the Left is Doomed(?)

by Pejman Yousefzadeh on June 29, 2012

Like other small-government activists, I was initially tremendously disappointed by the Supreme Court’s decision to uphold just about all of Obamacare, a decision that featured the finding that while the individual mandate was not a proper exercise of Congress’s power under the Commerce Clause, it could be found a proper exercise of Congress’s taxing power. If we are to solely consider doctrinal and legal issues, then any finding that the individual mandate is a tax should have led Chief Justice John Roberts, who wrote the majority opinion for the Court, to push the rest of the Court towards the conclusion that the Anti-Injunction Act ought to apply, and that the Court ought to punt the case until 2015, when taxes are finally collected. Moreover, it’s hard to see how the mandate is a tax; yes, there is a penalty imposed on those who do not purchase health insurance, the penalty is imposed via tax returns that take into account a person’s income, and it is collected by the IRS. Looks like a tax, walks like a tax, quacks like a tax–it must be a tax, right? But what I couldn’t get my head around is the fact that taxes are either implemented for the sole purpose of collecting revenue, or because they are needed to combat a negative externality (taxes on cigarettes keep people from smoking, taxes on carbon emissions reduce those emissions, etc.). The individual mandate’s tax appears to be just another way of regulating economic inactivity, and while the chief justice’s majority opinion stated that Congress cannot regulate economic inactivity via the Commerce Clause, having the chief state–along with four other justices–that Congress can do so via the taxing power seems on its face to give small-government activists nothing to be happy about.

On its face. Look more closely at the opinion, and one will find a massive legal victory for small-government activists. Yes, liberals get to keep Obamacare, and the president is happy–along with the rest of the White House. But they may not be for long.

First of all, by siding with the liberals and keeping most of the law intact–including the mandate provision–the chief just took the air out of the campaign to cast the Court as an illegitimate arm of the VRWC. This viewpoint never had any factual basis to begin with, but to the extent that it had any credence prior to the health care reform ruling, the chief justice has undermined it tremendously.

Small-government activists may complain that in doing so, the chief caved to his liberal critics, and got used as a tool of the liberal justices to affirm the constitutionality of Obamacare. They would be wrong. The chief didn’t get played. Quite the contrary; the chief did the playing. And most of the suckers he played–both within the Court, and outside of it–probably don’t quite understand what he achieved.

With the help of liberals on the Court, Chief Justice Roberts brought the Court around to the opinion that Congress cannot regulate economic inactivity via the Commerce Clause. This is not mere dicta; the question of whether the Commerce Clause could be used to regulate economic inactivity was plainly before the Court. And through the chief, the Court answered that the Commerce Clause could not be used in such a manner. As Sean Trende notes:

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers. Right now, liberals are seemingly too busy celebrating their win, and conservatives bemoaning their loss, to realize the significance of this.

None of the liberals’ previous arguments about the upshot of such a ruling are rendered invalid simply because the chief justice decided that this was a tax (and almost everyone agreed that if Congress had just called it a tax, it would have been constitutional). The court just constricted its Commerce Clause jurisprudence; if liberal commentators are correct, they did so by a lot. It doesn’t matter today, but 10 years from now, it will probably be a different story.

Is the ability to regulate via taxation scary? Sure, on its face. But go beyond the surface, and ask yourself how many politicians will want to regulate via new taxes?

Not too many. And as Trende points out:

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.

Incidentally, it is worth noting that choice parts of this video are going to find their way into Romney ads. And the chief justice is responsible for that. After all, the Court just bought the Obama administration’s argument that the individual mandate is a tax:

The chief wasn’t done with limiting the scope of the Commerce Clause. He also got seven justices to agree with the finding that Congress’s ability to attach conditions to legislation had to be curtailed, in addressing the constitutionality of the Medicaid expansion. Again, the chief was able to limit the reach of big government, and again, he was able to enlist the support of liberals to do it. Who is being played for a sucker again? To quote Jay Cost, “[t]his is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.”

As if that were not enough, the chief also managed to put limits on Congress’s use of the Necessary and Proper Clause. This further limits the power of government, and curbs its reach.

So, once the euphoria wears off–and assuming that they ever wise up–Team Obama will find that it is celebrating the fact that contrary to then-Senator Obama’s promises, President Obama has just raised taxes on middle class Americans per arguments that the Obama Justice Department made to the Court, which the chief accepted. Not the kind of thing that you want to boast about in an election year. The fact that the law survives (for the moment) will only serve to motivate Romney supporters and Obama opponents who are not quite Romney supporters. Meanwhile the chief justice has set in place the doctrinal foundations needed for further small-government/original public meaning victories in the legal sphere, at the cost of leaving mostly intact a piece of legislation that may be more vulnerable to repeal than many people think. The silly meep-meepers may celebrate an Obama victory today, but they might soon wake up to the realization that the chief justice just ate the president’s lunch–and the desserts of the president’s supporters.

John. Roberts. Is. A. Badass. The chief gamed this entire situation brilliantly. Conservatives, right-of-center libertarians, and other small-government activists and original public meaning advocates ought to stop vilifying him immediately. He just did wonders for the causes they–we–hold dear.

(In addition to Trende and Cost, I am indebted to the analysis of Larry Solum, Erick Erickson, Tom Scocca, and Will Wilkinson, which helped in the writing of this post.)

  • Whycoh

    However, as of now its the law. Maybe in the future lawmakers will not be able to do this but who says the republicans will be able to take back the senate. And even if they do I would worry abt their will to repeal it all

  • E. Nayden

    I dont see how this is a victory for conservatives or libertarians. The commerce clause will be replaced by regulation through taxation and the only restraints there are the whims of the ballot box. Thats certainly not how I understand limited government in a Republic.

  • Guest

    Robert’s choices:
    - throw the law out (as Scalia, et all would do) so Government can try again later- establish binding Commerce Clause and Medicaid coercion rulings The former is a temporary rebuffing. The latter is drawing a bright red line. The critical point is that to establish Commerce Clause and coercion limits Roberts had to find a way to let the law stand. It would not be possible to do both without upsetting the Taxing Clause precedent established in the SCOTUS 1937 ruling on Social Security regulation.

  • Demosthenes

    Your reasoning is noted, appreciated…and not accepted, at least not by this conservative.

Previous post:

Next post: