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Richard Brodsky

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Obama Care and SCOTUS: Read The Damn Decision

Posted: 06/28/2012 11:51 am

Who knew? When the political dust settles, and there's a lotta dust out there. The social and political implications of the decision will remain. And there are plenty.

Some examples: The Roberts decision is a rollback of historic Commerce Clause jurisprudence. The Congress since the New Deal has been assumed to have very, very broad power to regulate interstate business activity. It's the basis for much of the government's regulatory activity. Roberts narrowed it by distinguishing between regulation of economic activity, which is ok, and regulation of economic non-activity which is unconstitutional. Since the refusal to purchase insurance is a non-action, the Congress cannot regulate through the enactment of an insurance mandate. It's novel, sort of dangerous and sort of hard to get once you apply it to other "non-actions" than not purchasing healthcare. Agricultural payments for not growing crops, refusal to abide by a portion of a larger regulatory scheme in environmental or tax matters. Who knows? There is clearly a rethinking of the scope of the Commerce Clause going on, with uncertain consequences.

The Roberts decision defines the insurance mandate as a tax. Because it's a tax, not a regulation of commerce, the Congress can enact it. That's a loophole, but it's consequences are largely political. It validates the Republican attack on Obamacare as a tax increase which will soon fill the airwaves.

The Roberts decision limits the power of the Congress to compel actions by states by withdrawing funding. It's always been thought that the Congress can condition it's financial aid in any way it wants to. If you take federal highway aid, you must enact an 21-year-old drinking age and speed limits. Obamacare threatened states with loss of Medicaid funding if they refused to expand the program. That went too far, a kind of "dragooning" of states that offends some sort unwritten limitation on the power to condition aid on other behaviors. That's an erosion of the power of the Feds that may be a harbinger of future limitations

There's more that will become apparent as we reflect on all this. But it will be worthwhile to speculate on motive: Why did Roberts take the position he did? After Gore v. Bush there was a real sense that SCOTUS went beyond what was legitimate. Polling data shows the Court to be in trouble on that score. Was Roberts protecting the long-term legitimacy of the Court? And it will be worthwhile to reflect on the impact on the 2012 election. Good for Obama, or Romney? While it will provoke a divide on the wisdom of the law, it certainly helps the perception of Obama as a legitimate, mainstream politician. The Republicans have long and loud argued he's not legit, not a citizen, not an American, not a Judeo-Christian, not a capitalist, not one-of-us. But he led a fight to provide healthcare, he won, and he did it within constitutional limits.
Maybe he's not an alien, after all.

At the end it's not just a win or loss for ideology or legal theory. It's an example to the world that in the United States there's something called the Rule of Law. That's a victory for everyone.

 

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