Today’s Obamacare Decision: A Dissent (joined in part by Paul)

My view of today’s decision is somewhat different from that of most of my fellow conservatives. I found Chief Justice Roberts’ majority opinion quite persuasive, based on current law and the familiar principle that a statute should be interpreted, if at all possible, in a manner that makes it constitutional.

The reality is that the Constitution imposes no practical limits on the power of the federal government (beyond any specific prohibitions found in the Bill of Rights or elsewhere). That is a terrible thing, but it didn’t just happen today. The federal government has been expanding its powers beyond those enumerated in the Constitution for at least a century. I had hoped that today’s decision would be a watershed moment in which the Court finally started to turn the tide and begin the process of revitalizing federalism. That was, with hindsight, a foolish hope: only one of the nine justices, Clarence Thomas, expressed any desire to roll back any of the Court’s Commerce Clause decisions or otherwise restore the federal government to its proper constitutional role.

First, as to the Commerce Clause: The Supreme Court made a wrong turn a long time ago when it held that the clause gives Congress the power not just to regulate interstate commerce, but to regulate anything that affects interstate commerce. This is simply wrong. It is not what the Constitution says, and it has been the basis for most of the enhancement of federal government power that has occurred over the course of decades. I cannot agree with those who see today’s 5-4 ruling that the Commerce Clause does not sustain Obamacare as a major victory. This holding is very narrow, limited to the perhaps unique case where Congress wants to regulate inaction because it affects interstate commerce. In over 200 years, there has never before been an instance where such an argument has been made on behalf of the constitutionality of a federal statute, and it may never need to be made again. Congress’s power to regulate anything we do that affects interstate commerce–which is to say, anything we do–is plenty broad enough to justify any future infringement of our liberties.

Second, as to the power to tax, which became the unexpected centerpiece of the Court’s holding: my impression, without having studied the precedents cited by the majority and minority opinions, is that Roberts’ majority opinion is well-reasoned. The standard is a relatively low one–as Roberts writes, “the question is not whether [viewing the mandate as a tax] is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” If it is “fairly possible” to consider the mandate to be a tax, and if such an interpretation will save the constitutionality of the statute, that is how the Court should view it. And I think it is not at all an unreasonable interpretation to consider the mandate a tax, for the reasons that Roberts explains at length.

This is not to say that all reasonable minds must agree that the mandate is a tax. But that is not the standard. Moreover, the fact that the statute itself does not call the mandate a tax is not dispositive, and the fact that the administration has denied that it is a tax is simply irrelevant. Nor is it persuasive to argue that the mandate can’t be a tax for purposes of constitutionality, but something other than a tax for purposes of the Anti-Injunction Act. In the latter case, Congress’s intent is controlling, and if Congress chose not to label the mandate a tax it is reasonable to conclude that it did not intend the Anti-Injuntion Act to apply to it.

On these issues, the dissent sometimes makes cogent points and sometimes just splutters. Given the current state of the law, the questions at issue are close ones on which reasonable people (and judges) can differ. But, as I said, I found Roberts’ opinion rather persuasive as an articulation of current law.

One more point we should not lose sight of: the debate over Obamacare may have led some to believe that constitutional limitations on federal power are more significant than is actually the case. There is no dispute–none whatsoever–that under longstanding interpretations of the Constitution, Congress could enact socialized medicine. That would be deemed (contrary to Madison’s understanding) a proper exercise of the federal government’s power to tax and spend on behalf of the “general welfare.” The only reason why Obamacare posed knotty constitutional issues is that Congress elected to force insurance companies to administer socialized medicine on its behalf, in legislation that is essentially National Socialist.

So I am unhappy about today’s result, but not because it is out of line with past decisions of the Court upholding ever-expanding federal powers. Rather, because I had hoped that the current Court was poised to begin undoing many decades of bad jurisprudence. In that hope I was sadly mistaken.

Many conservatives have questioned Justice Roberts’ motives in the wake of his surprising concurrence with the Court’s liberals. This strikes me as entirely unfair. Roberts is a brilliant legal technician, and in my opinion those talents are displayed in his majority opinion. What reason is there to think that he does not believe what he writes? None that I can see. I disagree with Justice Ginsburg when she votes wrong–in my opinion–on virtually every controversial case. But I don’t question her motives; I assume that she sincerely believes that her view is the correct one. I think that minimal respect should be accorded to all of the justices unless there is strong evidence to the contrary. Here, as far as I have seen, the theory seems to be that any conservative judge would vote against Obamacare, and therefore Roberts must have had some ulterior motive. Such reasoning does a disservice not just to Justice Roberts, but to conservatives.

Moreover, if Roberts was playing the politician and trying to spare himself from criticism, he chose an odd way of doing so. The course he took–voting with the Democrats on the taxing power but not the Commerce Clause, so that the decision will go down in history as uniquely his–will bring far more calumny down on his head than if he had either voted with his fellow conservatives or joined with the liberals on the Commerce Clause and let Ginsburg write the opinion. One can speculate that Roberts had in mind some consideration of his place (or the Court’s place) in history, but why? It is a reasonable assumption that Roberts, like any other judge, thinks that his place in history will best be secured by his Court’s making sound decisions. I see no reason to assume that Justice Roberts voted and wrote as he did for any reason other than that he thought he was correctly applying the relevant legal principles to the case before him.

Scott made a great point earlier today: contrary to popular belief and its own self-image, the Court has rarely been much of a bulwark on behalf of individual liberty. Certainly it has acquiesced, not just today but for many decades, in a steady expansion of federal power beyond what is contemplated by the Constitution. Today’s decision was disappointing, but probably should not have been unexpected, and would not have been, but for the three days of arguments that highlighted the constitutional problems posed by Obamacare. It has been a long time since we could even hope to rely on the courts to protect us against further accretions of government authority. This is a democracy, and if a majority of our fellow-citizens are content to live as wards of the state, subsisting from cradle to grave as dependents, we are, frankly, screwed. There is only one place where freedom and a proper constitutional balance can be restored: the ballot box.

PAUL adds: I generally agree with this, as my posts about the decision make clear. I don’t question Chief Justice Roberts’ motives. I believe that his decision is an outgrowth of his sincere commitment to judicial modesty, a commitment that left-wing politicians and analysts have doubted.

However, I also fear that Roberts is drifting to the center of the Court and away from the conservative bloc, which consists of Justices Scalia, Thomas, and Alito. I base this fear not just on the Obamacare case, but also on other decisions that came down this term. The reason for the drift, in my opinion, is not bad motive. Rather, to over-simplify a litle, the drift stems from commitment to a theory of judging constitutional cases instead of commitment to a theory of the Constitution.

As for Roberts’ arguments on the mandate, I don’t find them as persuasive as John does. However, as I wrote this morning, “many of his arguments reflect well-established precedent and rules of construction, while the remaining ones seem plausible, at least facially, in Law World.” I think the dissent has the better of the argument in finding that the mandate does not impose a tax. However, Roberts makes plausible arguments to the contrary.

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