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The Supreme Court’s Surprise

Well, the Supreme Court, as it has so often before, surprised nearly everybody. Most people thought Justice Kennedy was the pivotal vote. He wasn’t. He thought the whole Affordable Care Act unconstitutional, as did Justices Alito, Scalia, and Thomas. The four liberal justices would have upheld the whole act. It was Chief Justice Roberts who made all the difference, and his idiosyncratic reasoning will have profound constitutional implications far beyond ObamaCare. Here are three, a distinctly mixed bag.

1) He limited federal power under the Commerce Clause. It is not constitutional to require people to buy a product. The clause is limited to regulating commerce that is, not commerce the government wants to see. That’s a big deal, because had the requirement been upheld, the power of the federal government under the Commerce Clause would have become essentially unlimited. As was pointed out in oral argument, you could be required to buy broccoli.

2) He greatly expanded the taxing power. Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

3) He considerably limited federal power over the states. The Tenth Amendment has been largely a dead letter for decades, declared a mere truism. (In which case, why did the Founding Fathers include it?) But Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

Judging by the signs being carried, the overwhelming majority of the crowd outside the Court this morning was anti-ObamaCare. With the upholding of the mandate, ObamaCare survives. For now. But I suspect the already energized anti-Obama forces in this year’s election will now be supercharged. The only way to get rid of this deeply pernicious piece of legislation will be to get rid of Obama. Requiring all candidates for federal office to sign a promise to repeal ObamaCare as a precondition of support would be a starter.



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