So it was shocking to see Justice Roberts side with the liberals in upholding the individual mandate as constitutional. It was an odd straddle. Roberts ruled that critics of the law were correct: The Commerce Clause does not justify compelling economic activity so as to regulate it. "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation. ... That is not the country the Framers of our constitution envisioned."
The opinion is direct and unequivocal that the government's claim of authority under the Commerce Clause was unconstitutional, and it gave the back of its hand to the claim that the Necessary and Proper Clause granted sufficient authority. It was everything a conservative could wish for. But then the chief justice (with the votes of the court's four liberals) reached for an alternative. If you call the mandate a tax, Roberts wrote, it falls within Congress's taxing authority.
While shredding the government's case that the Commerce Clause granted sweeping authority to regulate even nonactivity, the majority opinion vitiated all of that beautiful reasoning by permitting the law to stand as a tax. It doesn't even require Congress to pay heed, in future, to truth in labeling. If the Congress passes a new law that asserts unprecedented power, it needn't bother to call it a tax (and risk the voters' wrath), as the court will find a way to call it a tax later.
Roberts bent over backwards to find the law constitutional, most likely because he was loath to see the court attacked. His written explanation was a conservative one: "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
True enough, but the court is tasked with protecting the Constitution and clearly failed to do so here. A key pillar upholding limited government has been kicked away. If the practical result is to energize opposition to President Obama's re-election, it may turn out to a proverbial blessing in disguise. But there is no point in denying the damage.
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