I stayed up until the wee hours of the morning reading the SCOTUS Obamacare decision. What I found was so distressing I’m having trouble digesting it; it’s too fibrous and unappetizing a meal. But I’ve already swallowed it; in fact, we’ve all already swallowed it, whether we’re aware of that or not.
I’m probably going to write a longer article about it, but let’s just say for now that I’m also stunned by the depth of the misunderstanding (and/or deliberate misrepresentations, in some cases) about the case around the MSM and the blogosphere, even from the right side. For example, the usually insightful Walter Russell Mead simply doesn’t get it. He writes:
I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, but in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.
I’m not enough of a constitutional scholar to be called an expert, but I do know enough about the law that, after reading this decision, I can safely say that Mead is correct in one respect: the possibility of harm based on faulty constitutional theories that the health care law’s backers have put forward has been avoided. Unfortunately—very unfortunately—the possibility of harm based on faulty constitutional theories that the health care law’s backers have NOT put forward* has been tremendously increased.
Jonah Goldberg gets it, and puts it quite succinctly:
The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!
To reach this decision, Roberts had to embrace a position denied by the White House, Congress, and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they’re levied). Roberts’s effort, wrote Justice Antonin Scalia in dissent, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”
Roberts accomplished the following: put a limit on the previously infinitely-expanding Commerce Clause with one hand and took away previous limits on the tax power of the federal government. A neat case of sleight of hand, accomplished while nearly everyone seemed to be looking the other way. And it was done with reasoning so tortuous that “sophistry” is a very mild term for it.
I’m not saying this because I’m against the result, although I am against the result. If Roberts had merely joined with Ginsburg and the rest of the liberal wing in saying this came under the Commerce Clause, and used the usual liberal legal arguments contained in their opinion, I would have disagreed but not been so outraged. What he actually did was far stranger and more singular, and quite possibly even more threatening to liberty. He:
(a) found a legal principle no one was arguing (possibly because it doesn’t make much sense)
(b) expressly ignored the will of Congress and re-wrote its law for it
(c) said the penalty was a tax for one purpose but not another
(d) ruled that Congress could do almost anything to compel behavior if it used its taxing power
(e) ruled Congress could do (d) without explicitly using said taxing power and even while explicitly denying it is using said taxing power, so that the people who elect members of Congress cannot know what is happening at the time
There’s probably more, but that’ll do for now.
[ADDENDUM: Randy Barnett notes a limit of sorts on the tax power:
...[W]hile Congress can use its tax powers to incentivize conduct, it will be limited to monetary incentives. Had its Commerce Clause claim been upheld, in the future it could have punished noncompliance with congressional purchase mandates with any penalty—up to and including imprisonment.
*Or have barely put forward