A Defeat—But It’s Not Over, Or, Roberts’ Rules of Disorder

Finally back in Ashland, Ohio, after my turn this morning at Bill Bennett’s radio mic, which is always fun.  Dinner tonight with Mike Huckabee.  Wonder what will be on his mind?

I wont’s sugarcoat this: today’s Supreme Court decision was a significant defeat for the cause of constitutionally limited government, made all the more galling by the fact that Justice Kennedy—the usual wobbler—was on board for striking down the whole thing.  I won’t, however, go as far as Churchill’s words about Munich—“a total and unmitigated defeat”—because there are some aspects of Chief Justice Roberts’ strange opinion that make it something of a mitigated defeat.

First, let’s note that there were five votes to declare that the Commerce Clause cannot be stretched this far.  (There’s also a small affirmation of federalism in the Medicaid issue, which may, by the way, telegraph problems for the state exchanges under Obamacare, which will now be litigated).  A constriction of the Commerce Clause was far from certain at any point along the way; remember that several strong conservatives at lower courts—especially Larry Silberman on the DC Circuit—had upheld Obamacare on Commerce Clause grounds.  And then scroll back to a Power Line entry of mine from June of last year:

Eric Claeys, a former clerk for Chief Justice Rehnquist, thinks there is a good chance that even the Court’s conservative justices might not vote to strike down the individual mandate at the heart of Obamacare:

But this conventional wisdom [that the five conservatives will vote to strike down] is wrong — and adhering to it could prove highly counterproductive for Obamacare’s opponents. It is wrong largely because it assumes that the Roberts Court’s “judicial conservatives” are members of a monolithic bloc. But in fact, conservative judges are often pulled in different directions by two competing attachments: to “originalism” and to “judicial restraint.” In constitutional cases that touch on questions of federalism, Justice Thomas has generally voted and reasoned as a committed originalist. Justices Scalia and Alito, and Chief Justice Roberts, however, have often appealed to judicial restraint to uphold acts of Congress that may be in tension with an originalist reading of the Constitution. One or more of these three judicial conservatives may well do the same with regard to Obamacare.

Claeys thinks, and I agree, that a direct political strategy of congressional repeal is necessary. I’ve worried from the beginning that relying on the Supreme Court to deliver a political victory would dissipate conservative energy against Obamacare in particular along with Obama’s broader agenda. In fact, a Supreme Court victory in favor Obamacare would be a huge blow, as Obama would claim it as a signal of legitimacy for the plan.

So the fact that we came within an ace of having five votes to strike down the entire law should tell us something about how Obama’s overreach with health care has affected legal thought in the country.

Second, putting aside Roberts’ reasoning about how the mandate can be shoehorned into the taxing power (which no one disputes would have been a valid basis for Obamacare), it is surely plausible that what dictated his reasoning was political concern for the reputation of the Court.  While this shouldn’t be a factor in judging any case, it is not entirely insensible.  The Court will not now be an issue in this election—the substance of Obamacare will be, though.  (And from the sounds of things, the kettles of the Tea Party are back at a full boil this afternoon.  Good.) Obama now has to run for re-election beneath the cloud of having lied to us about Obamacare “not being a tax.”  Roberts’ opinion also implicitly says that Congressional Democrats are incompetent legislators.  (But didn’t we know that already?)  I look forward to seeing Sen. McCaskill, among others, respond to the inevitable TV ads that she “voted for a $1.7 trillion tax increase on the middle class.”  Should be fun to watch.  Just off the top of my head, I am guessing the “mandate is a tax” outcome will cost Democrats two or three Senate seats and another half-dozen House seats.

Some people are comparing this decision to Marbury, in that Obama wins the tactical victory, but loses the strategic victory.  (The incomparable Jay Cost, among others.)  There may be something to this.  Let’s wait for the dust to settle.  I’m not happy about things, but let’s let this play out a bit.  All I know for sure right now is that it’s not over.