What’s Next for the Opposition?
After SCOTUS ruled

Protesting against Obamacare outside the Supreme Court, June 28, 2012


From a policy standpoint, Obamacare remains the disaster it was before Thursday’s decision. From a legal standpoint, those interested in conservative legal principles generally, and in federalism specifically, have more to cheer than it would first appear.

When John Roberts and Samuel Alito joined the Supreme Court in the place of William Rehnquist and Sandra Day O’Connor — who, in addition to Justice Thomas, were the Court’s most committed federalists — it was an open question whether the Court would hew to its significant 1990s federalism decisions, which had, to liberal chagrin, (1) kept Congress from applying the Commerce Clause to non-economic activity, (2) kept Congress from applying the Commerce Clause to create private rights of action against states, and (3) prohibited Congress from “commandeering” states to act according to federal dictate.

Thursday’s decision resoundingly reaffirms the Court’s commitment to federalism and extends that line of cases in two ways. To begin with, by a 5–4 majority, the Court decided that the Commerce Clause cannot be applied to economic “activities” of omission (i.e., inactivity). Secondly, and strikingly, the Court finally placed limits on Congress’s ability to coerce states to act through conditional use of the federal spending power. Finally drawing a line suggested in the 1987 case South Dakota v. Dole, but never previously invoked, the Court at least partially closed the obvious loophole in the commandeering and Commerce Clause cases — namely, Congress’s ability to coerce state action by limiting access to the federal piggy bank.

The decision does highlight Congress’s broad taxing power, but that was the case before Thursday, too: Under the broad grant of the Sixteenth Amendment, Congress already can and does penalize us for acting or not acting in hosts of areas, including such sacred realms as getting married or having children.

— James Copland is the director of the Center for Legal Policy at the Manhattan Institute.


The Republican party should continue to push for full repeal of Obamacare and work to replace it with market-based solutions that will bring down costs and increase quality. Anything less is unacceptable. This election is going to be about the choice between the Democrats, who want to increase government intrusion into nearly every aspect of our lives, and fiscal conservatives who believe that America should be like America, not Europe. The stakes couldn’t be higher.

— Chris Chocola is president of the Club for Growth.


The cold water from Chief Justice Roberts and the Supreme Court Thursday on the constitutionality of the individual mandate in Obamacare is, to say no more, a familiar drink. Conservatives are not often rescued from public-policy folly by the judiciary, and now it is clear that, if rescue is to come, it must be by the blood, toil, sweat, and tears of sharp policymaking and tireless grassroots action, not by a master stroke from the Court.

The immediate impact of this ruling is, or ought to be, to unite fiscal and social conservatives in resistance to both the macro effects of the Affordable Care Act (ACA) and its dozens of noxious micro provisions. Already it is a tad disappointing to see some leading opponents of the law cite only its impact on small businesses or the economy. President Obama has said he means to be a “transformative” president. Adding one more costly benefit to businesses is not what he is referring to.

The transformational impact of the ACA is society-wide, and intentionally so. It aims to weaken every institution of civil society that competes with the national government and its goals. It weakens parents through its many provisions that deny them health-care-insurance options and that provide their children with “reproductive services” that the parents may regard as injurious. It weakens churches by directly threatening their social-service outreach (irrespective of their public-funding status) and denying them the civic expression of their creed. It weakens the insurance industry itself, transforming it into a public utility with a limited range of options. It makes the national government the ultimate arbiter of what is, and is not, health itself.

The collectivization of health care into a creature of national purpose and the ransacking of the (already ransacked) national treasury took a massive step forward Thursday. For conservatives of all stripes, and friends of true liberty of every hue, we have four months to regroup and reclaim lost ground. If we apply ourselves and pursue, on principle, policies that expand the role of every player in civil society, we will enlist every hand available to our cause, and a pathway to success will open.

— Charles A. Donovan is president of the Charlotte Lozier Institute.