The Supremes Get It Fundamentally Wrong

What a depressing day for America: Chief Justice John Roberts joined the liberal justices on the Supreme Court as the fifth and pivotal vote that allowed most of Obamacare to survive.

While much of the speculation in the academic and media world was about Justice Anthony Kennedy as the possible swing vote, one of the lawyers in my office kept saying over the past few months that Roberts was actually the weak link. Unfortunately, that prediction turned out to be all too accurate.

By upholding the individual mandate, the Court got it exactly wrong. They’ve issued a ruling with terrible implications for the future.

It is true that the majority opinion, written by Roberts, stated that the individual mandate was indeed beyond the power of Congress under the Commerce Clause.  While the Constitution gives Congress the power to regulate commerce, the power to do so presupposes the existence of commercial activity to be regulated.  As expansive as the Supreme Court’s prior reading of that power has been, those prior cases have uniformly described the power as reaching “activity.”

According to Roberts, the individual mandate does not regulate existing commercial activity.  Instead, it compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce.

Roberts refused to go down that path, concluding that would open a new and potentially vast and unlimited domain of congressional authority and power.  There is no doubt that liberal scholars will be disappointed by this part of the ruling, since they do not believe there should be any limits on congressional power and that the Commerce Clause should be extended to cover virtually anything that Congress wants to do.  What should scare Americans is that the four liberal justices, in a concurring opinion written by Justice Ginsburg, concluded that the individual mandate was within the authority of Congress under the Commerce Clause.

Roberts also refused to uphold the individual mandate based on the government’s second, fallback position, the “Necessary and Proper” clause.  Roberts said that all of the Court’s prior cases on this clause have involved exercises of congressional authority derivative of, and in service to, a power specifically granted to Congress.  Even if the individual mandate is necessary for Obamcare to work, such an expansion of federal power is not a “proper” means to implement the law.

Unfortunately, however, Roberts bought into the third fallback position that the government brought into the case: that the Obamacare law is within the taxing power of Congress. What is so extraordinary about this strained holding is that both President Obama and the congressional supporters of Obamacare all vehemently denied that the penalty an individual will pay if he does not comply with the individual mandate was a tax. In fact, the government took the completely contradictory position that the penalty was a penalty for the purposes of getting around the Anti-Injunction Act (which prohibits a lawsuit against a tax until the tax has been paid by the taxpayer) but then claimed it was a tax within Congress’s constitutional power to “lay and collect Taxes.”

This expansive reading of the tax authority is almost as bad as the kind of expansive reading of the Commerce Clause that the government and liberals wanted: it places virtually unlimited authority in Congress.

In a good example of that, the majority opinion says it would be perfectly fine if Congress enacted a law that made individual Americans pay a $50 tax to the IRS if they owned a house without energy efficient windows.  Under that view, there is really nothing Congress cannot do in extorting certain behavior from American taxpayers, as long as it uses the threat of tax penalties to achieve the desired outcome.

This places us on the same road to tyranny (but perhaps at a slower pace) that we would be on if the Court had upheld Obamacare to expand the authority of the Commerce Clause even further, unless our aversion to tax increases imposes some political checks on its use by Congress.  The Framers understood that there are at least some political checks on the use of the taxing power.

The Court did strike down, in a very narrow sense, part of the massive Medicaid expansion forced on the states by Obamacare.  The Court held that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. That violation can be remedied by preventing the secretary of Health and Human Services from withdrawing existing Medicaid funds if a state fails to comply with the new requirements.

Justices Antonin Scalia along with Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito wrote a very impressive dissent that Chief Justice Roberts should have also joined.  As the four justices said,  Obamacare “exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting States all Medicaid funding.

These parts of the Act are central to its design and operation, and  the Act’s other provisions would not have been enacted without them.  In our view it must follow that the entire statute is inoperative.”  With just one more vote, the entire bill would have been declared null and void as unconstitutional.

This case shows just how important a president’s ability to pick members of the Supreme Court is. Roberts has shown just how disappointing some justices can be to their supporters and those who want judges who will abide by the limits that the Constitution places on our government.

With the failure of the judicial process, the only thing left to do now is to get rid of Obamacare legislatively. Congress passed this monstrosity, and the only path to lifting it from the backs of the American taxpayer is through the legislative process.  That means that legislators should vote again to repeal all of Obamacare.

So we have come full circle. Congress is responsible for the mess that the Supreme Court has refused to clean up, and that leaves Congress with the responsibility to clean it up. Otherwise, they can be sure that voters will be watching.