Yesterday

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The decision and opinions in the health care cases were bound to be shaped by considerations outside “pure” legal principle—by politics or statesmanship, call it what you will. As it happens, I have a relatively high tolerance for that sort of thing. What strikes me as disappointing about NFIB v. Sebelius is that the statesmanship and politics are so bad.

More than one blogger-pundit has drawn the analogy to Marbury: give the administration what it wants; protect the Court’s power and prestige; and use the occasion to establish a legal principle for future cases. But there’s all the difference in the world between Marbury’s “this Court has the power of judicial review” principle and the supposed principles of yesterday’s decision. For starters, a Chief Justice’s opinion for a unanimous Court (as in Marbury) is far more likely to withstand future attack than is a 5-4 majority opinion, especially one that is so obviously the result of the author’s post-Conference vote switch. (The Volokh Conspiracy has several fine posts on that subject.) On a more merits-related note, what exactly is the principle in yesterday’s cases?

One candidate is the “to regulation of inactivity” limit to the commerce power and the related reasoning on the Necessary and Proper Clause. However, whatever one thinks of the reasoning, it is (1) unlikely to apply to much future legislation; (2) fatally undermined by the absurd “it’s a tax” argument; and (3) arguably dictum. (The Chief says it isn’t, but that may also be dictum.)

A second candidate is the 7-2 holding that the Affordable Care Act’s Medicaid expansion is unconstitutionally “coercive,” to the extent that Congress threatened states that wished to opt out with a withdrawal of all Medicaid funding. No doubt, states “as states” will seek to invoke that unprecedented holding in litigation over other spending statutes. But there is no intelligible principle here, only an analysis-free pro-state sentiment that cannot possibly sustain a plausible federalism jurisprudence.  In short, the Chief’s supposed act of statesmanship has bought nothing that is worth having.

So with the politics. One could argue that yesterday’s outcome, especially when coupled with the outcome in the Arizona immigration case, has freed the Roberts Court from charges of “conservative activism.” Maybe Jeff Rosen and E.J. Dionne will at last shut up, and the Court’s majority is free to do as it pleases on issues it actually cares about—the Voting Rights Act, affirmative action, another round of campaign finance litigation.

Dream on. The “deference at the price of plausibility” standard of NFIB v. Sebelius is the new normal, and future denunciations of “activism” will be all the more vehement. And besides: if the Court cannot bring itself to mow down the monstrosity that is Obamacare, what exactly is it saving itself for?

The statesman-esque, politically savvy way to skin this cat would have been to nix the individual mandate on a principle with bite, while upholding the rest of the statute and, moreover, emphasizing that even the mandate could have been enacted in some different form.  Sure, the liberal commentariat would have squawked. But the Court would have found that reaction easy to live down. The costs and consequences of this decision are bound to prove far more troublesome.