Unfortunately, I was away at a conference when the Obamacare decision came down and have not had a chance to blog on it. In the next several days, I will be blogging about several aspects of the decision.
Let me start out with what I thought should have been obvious: This is a calamity. Some commentators (who opposed Obamacare and believe that the federal government’s powers should be limited) have suggested that Chief Justice Roberts’ decision has a silver lining. I disagree. Chief Justice Roberts’ decision to join the progressive justices to uphold Obamacare is a disaster of monumental proportions.
Before the decision, I was predicting (along with some other knowledgeable observers) that there was a 55% chance that the Supreme Court would strike down the mandate, with a 20% chance of the entire statute being struck down. The main question was whether Justice Kennedy’s vote could be had. Because there is so much that is bad in Obamacare (with the mandate in many respects being the least of it, especially if one separates the mandate from the preexisting conditions regulations), the only genuine victory would have been the entire statute being struck down. Unfortunately, the odds of getting Justice Kennedy’s vote to do that seemed pretty long.
But, amazingly, it turned out that Justice Kennedy was willing to strike down the entire law. The expected conditions necessary for a full victory appeared to be there. But then Chief Justice Roberts spoiled that victory by joining the progressives. In my view, Obamacare is one of the most important pieces of legislation in the last 50 years and among the worst. It could have been killed. But due to Roberts, it continues to exist and even if the Republicans win in 2012, it seems hard to be confident that the whole law will be eliminated. Sorry, there is no way to see Roberts’ decision as anything other than a disaster.
Some have been arguing that Roberts’s decision has a silver lining because it got the entire court to sign on to limits on the Commerce Clause. Sorry, but I am not buying it. Let’s put to the side that very few statutes of any importance are likely to involve the power to require purchases. So let’s assume a really important statute does involve this power. Let’s imagine that Congress passes a law comparable to Obamacare – call it Obamacare II – that penalizes the purchase of a commodity but for political reasons cannot call the penalty a tax and makes clear in the statute that the law does not impose a tax. (Hey, wait, didn’t that happen already?) In that situation, does anyone really believe that the progressive justices would not dispense with this precedent in a heartbeat and approve the next holy grail of liberalism?
They might distinguish the precedent. Or they might simply overturn it (Let’s not forget that the Supreme Court’s precedent doctrine gives the Court significant discretion to overturn pretty much anything they want to.) The limits announced in this decision will no more stop a second Obamacare than United States v. Lopez’s symbolic language prevented the Court from approving Congress’s power to prohibit medical marijuana.
When you have been defeated, there is little point in denying what has happened. Let’s face it. It is a disaster.