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.

The other candidates running for the Republican presidential nomination could learn a lot from Texas Congressman Ron Paul. During his 2008 presidential bid, Paul was essentially Tea Party before Tea Party was cool, delivering a principled defense of the constitution and limits on federal power. That’s all for the good, and it seems to be a growing sentiment throughout the Republican base.

Where Paul is deeply problematic, however, is in his fundamentally flawed understanding of foreign policy. As the Daily Caller reports today, Paul’s latest misstep is his condemnation of President Obama for allowing the drone strike that killed Anwar al-Awlaki, the Yemeni-American cleric who was one of the leading public faces of Al Qaeda:

Speaking to a group of reporters at Saint Anselm College in New Hampshire on Friday, Rep. Paul said that American leaders need to think hard about “assassinating American citizens without charges.”

“al-Awlaki was born here,” said Paul. “He is an American citizen. He was never tried or charged for any crimes. No one knows if he killed anybody.”

Writing in the Wall Street Journal, my friend and podcast partner (and frequent guest on “Your Turn”) John Yoo sets Paul and his sympathists to rights:

Today’s critics wish to return the United States to the pre-9/11 world of fighting terrorism only with the criminal justice system. Worse yet, they get the rights of a nation at war terribly wrong. Awlaki’s killing in no way violates the prohibition on assassination, first declared by executive order during the Ford administration. As American government officials have long concluded, assassination is an act of murder for political purposes. Killing Martin Luther King Jr. or John F. Kennedy is assassination. Shooting an enemy soldier in wartime is not. In World War II, the United States did not carry out an assassination when it sent long-range fighters to shoot down an air transport carrying the Japanese admiral Isoroku Yamamoto.

American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal.

Lest this be oversimplified to a libertarian vs. neoconservative argument (a caricature of both Congressmal Paul and Professor Yoo), I should note that Richard Epstein — perhaps the leading libertarian legal scholar in the country — happens to agree with John Yoo. If you’re interested in hearing more, you can hear professors Epstein and Yoo hash this issue out on the newest episode of Ricochet’s Law Talk Podcast (hosted by yours truly and available by subscription).