"We are now becoming Venezuela and on the way to becoming Castro's Cuba," said radio talk show host Michael Savage. My favorite came from a Tea Party organization: "The hideous abomination from hell must be eradicated."
Well, that's one way to look at it. Another way is for advocates of limited power, individual freedom and constitutional government to count all the ways in which our side won.
When Congress approved the requirement that everyone have health insurance, it took for granted it could legislate at whim, courtesy of the commerce clause of the Constitution. That provision has consistently been given a broad interpretation -- allowing the federal government, for example, to force a farmer to destroy wheat he grew not to sell (commerce) but merely to eat.
When Georgetown University law professor Randy Barnett challenged the mandate, legal scholars laughed out loud. He insisted the clause allowed regulation of economic activity, but not of economic inactivity -- such as declining to buy health insurance. This step, he said, was literally unprecedented.
One legal scholar predicted Barnett would lose 8-1. The White House said the argument "shouldn't be given too much credence in the press." Asked about the constitutionality of the mandate, then-House Speaker Nancy Pelosi replied, "Are you serious? Are you serious?"
Yet, lo and behold, the argument prevailed with a majority of justices. "The framers gave Congress the power to regulate commerce, not to compel it," explained Roberts. "The commerce clause is not a general license to regulate an individual from cradle to grave."
Yes, the court did narrowly uphold Obamacare as a permissible exercise of Congress' taxing power. But if it was going to uphold it, this was the least dangerous method. Allowing it under the commerce clause would have amounted to an open-ended grant of power.
What tangible difference will this limitation make in future cases? It's not clear yet. But Yale law professor Akhil Reed Amar, who supports the program, glumly told The New York Times, "Federal power has more restrictions on it. Going forward, there may even be laws on the books that have to be re-examined."
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