Today’s Supreme Court decision on Obamacare—though it is tragic with regard to statutory interpretation and health care policy—has two significant constitutional silver linings. At the constitutional level, the stakes are much more significant and resistant to political influence. In short, the American people may elect new representatives to repeal Obamacare, but today’s constitutional rulings are far more enduring. And they are, on balance, wonderful.
The Court is inexplicable in reading the mandate penalty as a tax when President Obama and congressional sponsors emphatically denied it was a tax, but that is only a misreading of a statute. On that statutory ruling, the Court majority held that the mandate penalty is not a tax for purposes of the tax Anti-Injunction Act, but is a tax under Congress’s taxing power, despite the fact that the law never calls it a tax. Yes, this is a terribly strained reading of the statute, but conservative constitutional scholars who challenged the mandate never said that Congress did not have the power to enact a tax similar to the mandate penalty.
Despite the Court’s error in reading the individual mandate penalty as a tax, five justices opined that the mandate, standing alone, cannot be justified under the Commerce Clause or the Necessary and Proper Clause. This is not remarkable to anyone who knows the original meaning of the Commerce and Necessary and Proper powers, but it is a serious blow to 90 percent of the legal academics and about 90 percent of Congress, since these have been the clauses used to justify so much of the modern administrative state.
On the pro-government side of the ledger, Chief Justice Roberts goes too far to expand the reach of Congress’s taxing power. That is not a good development by any means, but the Framers understood that there are at least some political checks on the use of the taxing power. This is one reason why President Obama and the liberal sponsors of Obamacare tried so hard to deny that it was a tax. One political reality of today’s decision is that the Court essentially reads Obamacare as a massive tax increase, which falls most heavily on the middle class. Didn’t someone promise not to do that?
The majority’s ruling on the onerous conditions attached to the Medicaid expansion is also helpful in limiting Congress’s power to bribe states into submission or to threaten them with the loss of federal revenue in a long-run federal-state program. In a fractured set of opinions that will take some additional time to untangle, a majority of justices imposed limits on Congress’s ability to threaten the denial of previous funding streams based on states’ agreeing to new funding conditions in those programs. Indeed, seven justices seemed to agree that some constitutional limitations were breached in the Medicaid expansion. This itself is a landmark ruling.
Liberal legal scholars are not going to like most of today’s constitutional rulings; their wailing will start pretty soon. In the long run, today’s constitutional rulings will be seen as an important victory in promoting fidelity to the Constitution and the ideal of limited government. The American people and their elected representatives have a lot of work to do to repeal and replace the Obamacare statute. Moreover, we still have an uphill battle to restore and preserve the written Constitution we have been bequeathed, but the Court today put some temporary brakes on our republic’s descent down an extra-constitutional slippery slope in which the federal government can control any aspect of our lives that has any imaginable impact on commerce—meaning everything.
Today the hard work continues, as Benjamin Franklin long ago urged, to “keep” the Constitution the Framers granted us, with its ideal of limited government. But in the days that come, I think we should go forward with more hope that the struggle is both worthy and manageable.
