Freedom Line Blog

As the pessimist-in-residency at CFIF, I have to unhappily report that I find it virtually impossible to muster an interpretation of the Supreme Court’s ObamaCare decision as optimistic as the one that Tim notes below from George Will.

My thoughts track most closely with those of my friend and podcast partner John Yoo (you can hear me lead John and Richard Epstein in a discussion of the ObamaCare decision here). Here’s John, writing over the weekend in the Wall Street Journal:

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero [Chief Justice Roberts]. Some hope [The ObamaCare ruling] covertly represents a “substantial victory,” in the words of conservative columnist George Will.

After all, the reasoning goes, Justice Roberts’s opinion declared that the Constitution’s Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power … The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

John, I fear, is right. Finding conservative principles in the constitution has zero cash value when they don’t effect the ultimate outcome (though they admittedly did, in limited fashion, with the Medicaid expansion). As for banking on them paying dividends in the future? That depends on the deference that future incarnations of the Court are willing to give to the Roberts decision. And that’s a reed too thin to bear the weight that conservatives are attempting to load upon it.