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Victory in Defeat
The Supreme Court’s health-care ruling reaffirmed limits to Congress’s authority.


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Kenneth T. Cuccinelli II

Many of us are lamenting the Supreme Court’s decision to uphold PPACA. The law will almost certainly lead to increasing medical costs and significant disruptions in the provision of health-care services.

Yet what must not go unnoticed is the fact that with parts of its decision today, the Court reaffirmed certain important core principles. The Court reminded the federal government that it has limited and enumerated powers. While the federal government is supreme in its sphere, it is not permitted to operate outside of its constitutionally defined role.

The Court expressly rejected the federal government’s assertion that it could use the Commerce Clause to force citizens to engage in commerce for the sole purpose of regulating them. A majority of the Court held that the commerce power reaches only those who are currently engaged in commercial activities. It does not reach those who are not engaged in commerce, even if those very same people are likely to engage in commerce in the future. Thus, the Court explicitly adopted the activity/inactivity distinction that opponents of the law had championed and that liberal commentators had ridiculed.

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Some will suggest that this is no victory at all, given the Court’s ruling that the money one must pay for failing to obtain insurance can be supported as a use of Congress’s taxing power. However, by confining within the taxing power the ability of Congress to adopt such schemes, the Court has greatly limited Congress’s ability and political appetite to attempt them in the future.

Now everyone will know that when Congress does something like this, it is without question a tax increase. Is there any doubt that if PPACA had been presented as a middle-class tax increase, it would have failed? Because the American people have made clear that elected officials raise taxes at their peril, it is unlikely will we see this particular gambit repeated.

Another thing to note is that Chief Justice Roberts’s opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional.

Additionally, the Court recognized a limit on Congress’s spending powers. The Court blocked the federal government from withholding Medicaid dollars that states receive under the current Medicaid program if those states do not want to participate in the new and costly expansions of the program mandated under the health-care law. By doing so, the Court expressly limited the power of the federal government and allowed states to decide whether to accept or reject the Medicaid expansion on its own merits, without the threat of losing existing federal funding on which states have come to rely.

While it is still disappointing that the Court ultimately upheld the law, it clearly recognized that there are limits on federal power that Congress simply cannot transgress. By bringing these cases challenging the overreach of the federal government, my colleagues and I have called to mind William F. Buckley Jr.’s vision for the role of National Review. As the federal government sought to exercise powers not delegated to it by the Constitution, we chose to “stand athwart history, yelling Stop.” On Thursday, regarding Congress’s commerce and spending powers, the Court heard that call and ordered the federal government to stop.

While the Court’s recognition that there are limits to Congress’s commerce and spending powers is a good thing, this is but one battle in a never-ending fight to maintain liberty. If history shows anything, it is that, over time, governments seek to centralize and accumulate power. Thus, while the Court noted limits on federal power today, there will be attempts in the future to override or evade these limits.

We must remain vigilant. We should strive to avoid relying on the courts to rein in the federal government. We should seek to have a federal government that voluntarily operates within the proper boundaries. The best way to do that is for the voters to elect officials who recognize and value constitutional limits on government power.

Because there will always be another election, the battle will never be over. It is ultimately up to the American people to decide whether the limits recognized by the Court today will continue to be recognized in the future.

— Kenneth T. Cuccinelli II is the attorney general of Virginia. In that capacity, he was the first state official to file a lawsuit challenging the constitutionality of Obamacare.



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