The commerce clause can’t justify the individual mandate.

Randy Barnett, who argued against the law:

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power:  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

Naturally, liberals are complaining that the commerce clause has been “gutted,” as if affirming that the decision not to buy health insurance doesn’t constitute interstate commerce is similar to what one does to a smallmouth bass.

For more on Roberts’ somewhat unusual conception of  judicial restraint, see Dan’s take from earlier today, and a very prescient piece from Reason’s Damon Root from last August.

Chief Justice Roberts walked a very fine line, and possibly flipped after conference.

By siding with the four liberal justices, John Roberts didn’t just uphold the mandate, he prevented the entire law from being struck down.  The four dissenting justices–even Kennedy–opposed the entire statute, and none of them took the tax argument seriously:

The Act before us here exceeds federal power both in
mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding.  These
parts of the Act are central to its design and operation,
and all the Act’s other provisions would not have been
enacted without them.  In our view it must follow that the   entire statute is inoperative.

And based on the language of the dissent, Roberts may have switched his vote after conference. As former TAC-er Michael Brendan Dougherty tweeted, Justice Scalia’s opinion repeatedly refers to Justice Ginsburg’s opinion as “The Dissent.” Georgetown Law Professor Lawrence Sollum writes, “Language like this is highly suggestive of a majority opinion.  The reference to the dissent and “we” strongly suggests that the “we” was a majority of the Court.  This suggests that Justice Roberts switched his vote.  There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.”

David Bernstein at Volokh asks, “was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.”

Enthusiasm boost for Mitt Romney is probably exaggerated

From a political perspective, Mitt Romney, Barack Obama, and both parties’ congressional leadership got what they wanted with today’s ruling upholding the Affordable Care Act. Republicans hope it will energize the base, and Democrats are happy to have averted the embarrassment that would have resulted from the president’s signature achievement being deemed unconstitutional. As Scott Galupo notes, today’s ruling could embolden the president to campaign more heavily on his healthcare reform law. Also, conservative agitation against the law is likely to fade.

New York Times resident psephologist Nate Silver has doubts about how much of a boost today’s ruling will give Romney:

Some of the analyses that claim the law could help Mr. Romney instead argue that Thursday’s decision could motivate the Republican base. But the Republican base was already reasonably well motivated for the election. A decision to strike down the law, meanwhile, would have represented a victory for movement conservatism — and victory can be its own motivating force.

At a panel put together by the American Enterprise Institute to respond to today’s ruling, James Capretta of the Ethics and Public Policy Center warned that the GOP needs to formulate specific policies in lieu of Obamacare or risk electoral defeat:

The mainstream press will report this as a ‘move on’ type moment, and that was always a danger with putting so much on the Supreme court, on five people making a big change in policy. So this is going to put a huge amount of pressure on those who oppose the law to come forward with a replacement program. I don’t think at this point that just the repeal message will carry them through politically. They’re going to have to prove to the center of the country that there is an alternative that will provide better security, less government control, and less risk to taxpayers.

Larison here on how Romney’s repeal position “has always been first and foremost an expression of his opposition to Obama and all his works.”

Justice Kagan voted against the Obama administration on the Medicaid expansion.

Aside from the mandate ruling itself, which had a 74 percent likelihood of being struck down on Intrade yesterday, this was today’s biggest surprise. Justice Breyer also took the side of restricting Medicaid, but Kagan’s ruling, as an Obama appointee, was more unexpected.


Although many will be surprised that Chief Justice Roberts joined the Court’s progressive bloc to uphold the mandate, the far bigger surprise is that two members of that bloc-Justices Breyer and Kagan-joined the conservatives in holding that the Medicaid expansion exceeded Congress’s power,” says Stephen Vladeck, of American University Washington College of Law.” As a matter of precedent rather than politics, the Breyer and Kagan votes on Medicaid are likely to be far more significant going forward than the Roberts vote on the mandate,” he said.

Since the individual mandate is now officially a tax, full repeal isn’t necessary to end it.

The GOP won’t be able to defeat a 60-vote senate filibuster any time soon. But since the mandate is now officially a tax, it can in theory be zeroed out through the budget reconciliation process, which cannot be filibustered. Tim Carney makes the case:

Since Chief Justice John Roberts ruled today that Obama’s individual mandate is a tax, Republicans, it seems to me, could simply lower the tax for not having health insurance down to $0.00, as a matter of budget reconciliation.

Since it’s a tax and not a mandate, there can’t be any penalty for not having health insurance above and beyond the tax. So, voila! No more mandate!

The mainstream media is incompetent.

Bonus Flashback: