Despite the legal gymnastics from Chief Justice John Roberts in writing the majority opinion, he did Americans three favors and maybe even a fourth one. First, Chief Justice Roberts painted a bright line on the regulatory highway for federal control of interstate commerce. Long the primary means of liberals to recreate the world in their own image, the Commerce Clause in the Constitution is an enumerated power. Chief Justice Roberts and six of his eight colleagues ruled that in addition to being enumerated, it’s also a limited power.
Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it.
It is one measure of regulation to tell meat distributors that beef or chicken or pork has to be prepared for sale according to certain health standards. It’s even quite another thing to say people can’t purchase meat, which prohibition, as far-fetched as it sounds right now, could be allowed under the Commerce Clause. But what Chief Justice Roberts has made clear is that those regulatory powers cannot be used to make people buy meat or vegetables or health care. That ruling is a blow to progressives everywhere and a boon to advocates of limited government.
The second favor Chief Justice Roberts gave Americans is the stark reminder that they control their own political destinies and the laws of their nation. He wrote,
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 distinctions 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 decisions.
Chief Justice Roberts did allow Obamacare’s individual mandate on the grounds that it is a tax on people who choose to not buy health care – and that the Constitution grants Congress the enumerated power to lay and collect taxes. Again, I think that construction is stretching it a bit. But, nevertheless, the chief justice put the ball squarely in the hands of Congress whose members are directly accountable to the people. Good reminder: If you despise Obamacare, kick out the bums who voted for it, including its nickname-sake.
The third favor Chief Justice Roberts did for the American people was to tell Congress that it cannot use another enumerated power, the Spending Clause, to force states to do something they refuse to do – in this, case expand Medicaid. Roberts wrote, “Congress may use its spending power to create incentives for states to act in accordance with federal policies. But when pressure turns into compulsion, the legislation runs contrary to our system of federalism.”
Apply this limitation to any federal program enticing states to take money. Think Common Core and No Child Left Behind in addition to Medicaid. States are sovereign. States can turn down the money and the programs.
One last favor the chief justice may have given the American people is a new president and Congress. Obamacare has outraged many Americans. That Chief Justice Roberts now says it can stand as law, as a new tax, will certainly drive disgruntled Americans to the polls in November. Chief Justice Roberts, meet President Mitt Romney – our new president wants to personally thank you.
For Sutherland Institute, I’m Paul Mero. Thanks for listening.
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