My initial reaction to John Roberts’s Obamacare opinion was that the chief justice had gotten a proverbial lemon and made lemonade.
One weekend later, I uphold the decision of the lower court that is my gut.
Consider: Most Democrats came away declaring total victory. And commerce clause skeptics like Randy Barnett and Ken Cuccinelli declared, at the very least, a partial short-term victory. Roberts managed to affirm the principles of judicial restraint and deference to the legislative branch, but also drew a line in the sand on further expansions of federal power under the rubric of the commerce clause.
It seems to me that’s not a terrible dispensation of justice.
Yet the blockbuster report by CBS News’s Jan Crawford, which indicated that Roberts had initially sided with the conservatives and later changed his mind, has added a political stench to the ruling.
“Roberts’s opinion is simply not up to his normal high standards and, indeed, engages in sloppy reasoning. Even commentators who agree with his conclusion don’t buy the arguments for it,” writes John Fund at National Review Online.
For example, there’s New York magazine’s Jonathan Chait, who argues that the mandate was more justifiable on Commerce Clause grounds, and that Roberts’s tax-authority fallback is legally tortuous. “If his decision was justice, it was justice of the roughest kind.”
At this point, I can’t imagine any ruling in this case that wasn’t going to feel like rough justice. The conundrum of healthcare politics is that the policy that conservatives would have found legally permissible — taxing everyone directly and providing them health insurance, that is, the Medicare-for-all scheme — is politically impossible.
Thus the mandate muddle.
Roberts’s construal of the mandate as a new kind of “sin tax” that coerces behavior strikes me as the best-possible gloss on this muddle. As Steve Chapman writes at Reason: “[I]f it was going to uphold it, this was the least dangerous method. Allowing it under the commerce clause would have amounted to an open-ended grant of power.”
The Wall Street Journal editorial may thunder: “From now on, Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires.”
Imposing taxes in such an arbitrary fashion does sound scary, but is this a realistic reading of the politics of taxation? Democrats have found it impossible to raise income taxes on the wealthy, for instance. No one questions the constitutionality of a top tax bracket of 39 percent. The problem is that raising taxes is politically radioactive. Indeed this is the reason the Obama administration chose not to make this argument about the healthcare mandate in the first place.
John Roberts has erected a backstop against future regulations under the commerce clause. And he in effect created a fat new target for the likes of Grover Norquist.
Contra the shock-jock Michael Savage, I think the republic is still a long way from Castro’s Cuba.