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.