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The New and Even Worse Obamacare
The Court’s rewriting of the law strengthens the case for repealing it.


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Yuval Levin

The political case for repealing Obamacare, which has always been the most significant and relevant case, is stronger than ever after today’s decision. Left alone, the law will spend well over a trillion dollars in the coming decade on yet another health-care entitlement program and on the expansion of existing entitlements, micromanage the insurance industry in ways likely to make it even less efficient, employ even heavier price controls of the sort that have always failed in Medicare, and raise half a trillion dollars in taxes on employment, investment, and medical research. And now we know that its tax bill will be even higher than we thought, and that its reduction of the uninsured even smaller. Today’s decision just means that President Obama must now embrace this monstrosity even tighter, and that the case for replacing him has grown even clearer and more powerful.

The great legal scholars at NRO and elsewhere will surely be offering their sharp analyses of the Court’s decision in the coming hours and days, and I very much look forward to learning from them. Until then, a few thoughts about the Court’s arguments from this amateur observer, and a few (perhaps slightly more informed) thoughts about the health-care implications.

Reading the opinion of the Chief Justice, it is hard to avoid the conclusion that he was working very hard to find arguments that might enable him to walk a precarious tightrope, and that at the end of the day he just had to pretend those arguments existed. In the months leading up to this decision, many of us thought the Court faced a choice between throwing out a major act of legislation and throwing out any limits on the Commerce Clause. My sense from this opinion is that Roberts desperately sought a way to do neither: He wanted to avoid striking down the law (and four of his colleagues evidently concluded that the whole law would have to go if the mandate did), but he wanted to avoid extending even further the meaning of the Commerce Clause.

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This is a thoroughly understandable desire. He pursued it in the end by treating the individual mandate as a tax. The Court’s opinion thus accepts more or less in their entirety the arguments of the conservative legal scholars who said that the Commerce Clause could not be read to permit Congress to regulate inactivity or to compel commercial activity, and rejects more or less in their entirety the frantic, shallow tantrums of countless liberal legal types who insisted that such an objection was tantamount to lunacy. In its effects on our understanding of the Commerce Clause alone, this decision does much of what conservatives hoped it might. But it then treats the mandate as a tax and so concludes that the law can stand with just that alteration in our understanding of its meaning.

The Chief’s argument for this interpretation seems to me exceedingly weak, and the critique of this argument offered up by the dissenting justices is devastating. But Roberts seemed to be after what might be considered a minimalist (or restrained) ruling in terms of both its constitutional implications and its practical ones — he wanted to leave the law alone but reject its champions’ limitless interpretation of the Commerce Clause. He did that at the expense of a coherent case for the Court’s ruling. His desire is not hard to understand, though his actual legal reasoning is.

And the nature of the action he has taken, as a matter of the Court’s disposition toward laws brought before it in disputes, is strikingly micro-managerial. Roberts has rewritten the law in several crucial respects rather than rule it unconstitutional. It’s not clear how his own theory of the Court’s role (even as articulated in this opinion) justifies doing this, but it seems his concern for the Court’s standing justified it in his eyes. This rewriting of the law — the fact that Obamacare was not simply upheld today — has several significant practical implications.



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