It's important to recognize that the decisions were narrowly tailored to deal only with constitutionality of the two laws at issue: the federal Affordable Care Act and Arizona's S.B. 1070. Neither decision spoke to the wisdom of existing policy in either area. In fact, both health care and immigration laws are in desperate need of major revisions.
The health care decision, announced Thursday, affirmed the constitutionality of the major provisions of the law. While striking down one provision having to do with Medicaid, the Court upheld the most controversial part of the law, which mandates that individuals buy health insurance or pay a penalty to the federal government.
Five of the justices, including Chief Justice Roberts and the other four conservatives on the Court, said that the Commerce Clause could not be read to allow the federal government to require individuals to buy health insurance -- the argument advanced by the Obama administration. However, Roberts voted to uphold the law's constitutionality based on his interpretation that the federal government's taxing authority permits it to penalize those who choose not to buy insurance -- thus ensuring a 5-4 victory that in effect preserves the means to finance universal health care as envisioned by the law. In essence, the chief justice said that Obamacare is a tax imposed on those who do not wish to purchase health care.
If conservatives are smart, they will use this point to hammer home to Americans that the Obama administration has imposed a hefty tax on every American who is not covered by health insurance and has probably raised premium costs for those who already have insurance by mandating policies to cover new services. In an election season when many, if not most, Americans are feeling an economic pinch, this could be a huge problem for the president. And especially so because the president has consistently maintained that his health care bill was not a tax, nor would it raise the costs of health care. Republicans in Congress should use the opportunity to offer bills to repeal this regressive tax.
The other important decision handed down this week had to do with the power of states to impose their own sets of rules and penalties with regard to illegal immigration. While many conservatives are upset that the Court struck down key provisions of Arizona's tough anti-illegal immigration law, SB 1070, they should be more angry at Congress for failing to pass legal immigration reform that would end up to 90 percent of illegal immigration by expanding legal immigration and temporary work visas. But instead of adhering to their basic understanding of free market principles when it comes to immigration policy, many conservatives have jumped on the bandwagon of intrusive big government to solve immigration problems.
There is no question that Americans have a right to be concerned about border security and the large number of illegal immigrants that are living in the United States. But the solution is not for states to try to impose their own versions of immigration law -- which are the exclusive provenance of the federal government -- but for Americans to push Congress to act on meaningful changes to our immigration laws. The answer to combatting illegal immigration is to base legal immigration laws on the country's economic needs and to make it flexible. The best policy would be to increase immigration when there is high employer demand and not enough domestic workers to fill the need, and decrease it when there supply exceeds demand.
Unfortunately, those on both sides who have dominated the debate in the last few years have been hostile to a free market approach. Liberals favor higher immigration under all circumstances, motivated in large part by their desire to enlarge their own constituency, which they believe will happen naturally if more immigrants from Latin American countries come.
Just as problematic, many conservatives who oppose expanding legal immigration have lost faith in the ability of the United States to assimilate new immigrants, despite overwhelming evidence that current immigrants -- including Latinos -- are assimilating at rates that are as high or higher than previous immigrants from Europe. Instead of adhering to basic conservative principles, these anti-immigration conservatives end up favoring bigger government to patrol our borders and increased regulations for everyone who wants to work in the U.S, including American citizens. We've tried these methods now for more than twenty years, and they haven't done the job.
The Supreme Court's ruling on immigration should motivate conservatives to demand genuine immigration reform at the federal level -- but most importantly, reform that preserves conservative principles on individual liberty and the free market.
When it comes to both decisions this week, conservatives need to follow their own advice: don't rely on the Courts to fix policies that have gone astray.