Jonathan Rauch has had a conversation with the ghost of Ted Kennedy about the Obamacare case. The late senator believes that if the Court strikes down Obamacare we will end up with a single-payer system. I explained why I find this scenario dubious last month.
Rauch’s Kennedy also has some jurisprudential thoughts: “Conservatives insist the mandate is unconstitutional under the Commerce Clause, but they acknowledge that an effectively identical policy fits comfortably within the scope of Congress’s taxing power. And a nonactivist court is obliged to uphold a law that fits within any part of the Constitution. That’s what conservatives have always said — until now.” That’s nuts. If any conservative ever said any such thing, he was an outlier, and he was mistaken.
Actual conservatives cheered the Supreme Court’s Lopez decision, which invalidated a federal gun-free schools law as exceeding federal power. Everyone understood that Congress had alternative means of accomplishing the same result, and the Court would not interfere if it did so. (For example: The holding did not deny a congressional power to condition aid to state governments on their enactment of a gun-free schools law.) Everyone understood that the point of the ruling was that the means Congress chooses has to be constitutional. You could make the same point about Printz v. United States (and I have).
In the Obamacare case, blocking an unconstitutional means of proceeding is not just an empty formalism. It serves the end of limiting government by making Congress confront a larger share of the costs of its health-care schemes.
Kennedy is, in short, no more persuasive dead than he was alive.