Bench Memos

The Good News In The Obamacare Decision

Well, it could have been worse. Much, much worse. A quick overview of the good news in the decision after some quick skimming:

The mandate is upheld as a tax, using the coercive — but not unlimited — power that Congress has always possessed. This is a distinction with a very big difference. Had Obamacare been upheld under the Commerce Clause, then our Constitution would have been a dead letter without limits on congressional power. We still have our Constitution.

The Court reiterates that Congress has the power to regulate commerce, not compel it. This is also good news. The Court’s explicit rejection of using the Commerce Clause and the Necessary and Proper Clause to justify the individual mandate makes any future congressional desire to accomplish similar aims more difficult. In short, pushing a tax through Congress while claiming it’s not a tax is appears to be a one-time occurrence since this decision sets a precedent for allowing laws to survive as a tax that could not have been passed as a tax.

Because of this, I would not be surprised to see legislative language inserted in future bills that explicitly states what authority Congress is using. Since coercive action can now be upheld under the taxing authority, it is constitutionally important to hold legislators accountable by requiring an explicit description of the authority being utilized. Otherwise legislators could claim they were not voting for a tax while hoping the courts will declare it one later. I would welcome a clear declaration in legislation that describes what Constitutional power is being used to enact a law. It is plausible that if such a provision was used in drafting this legislation, the bill may have explicitly stated that Congress was not relying on its taxing authority. Such a clear description could have had significant weight, as opposed to contemporaneous official statements that the court does not take into account. As always, eternal vigilance is required.

I will leave the political fallout of all of this to more capable folks, but I want to add one final thought about disappointing Supreme Court decisions. When the Supreme Court ruled in Kelo v. City of New London that eminent domain could be used in just about any situation the government wished, it felt like a devastating blow to liberty. However, since that decision, nearly every state in the union passed laws aimed at curbing eminent-domain abuse, a result I certainly did not anticipate the day the ruling came down. As my former Texas senator Phil Gramm used to say, no single event is as good or as bad as it may first appear.

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