George Will points out that Chief Justice John Robert's rebuttal of Democrats' claims to the Commerce Clause may have wider implications for the country than ObamaCare:
Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.
The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . 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, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
This is a good point. While the ObamaCare decision suggests Congress now has the ability to tax anything it wants, it kind of always did. If Nancy Pelosi wanted to institute a tax on goldfish, she could propose it. That doesn't mean it would be approved by her colleagues on Capitol Hill, but technically she has always the ability to do so if she could explain why taxing goldfish was good for the country's general welfare.
Where today's decision really gets sticky is in matters of process. If the ObamaCare mandate is indeed a tax as Roberts says, then there are certain procedures Congress should have followed in crafting the legislation, including launching the revenue-raising legislation in the House of Representatives** as the Constitution commands. This wasn't the case, however, so I'm curious as to whether lawsuits in the future will challenge ObamaCare on procedural grounds rather than constitutional merit.
Additionally, Charles Hurt adds a bit more silver-lining, albeit in a colorful way:
Though he shocked many by joining the left plank on the high court, Justice Roberts. pretty much did what he was supposed to do. He finally put a boundary on how much freedom the federal government can gobble up from states and individuals under the “commerce clause” — that most specious scheme for so much federal thievery.
Then he told President Obama and his kleptocrats in Congress that they can have their health care law, but they cannot keep lying about it. A tax is a tax and they are liars if they call it anything else. And they just stuck the crippled American taxpayer with one of the biggest, broadest, most regressive tax-hikes in history — and during a deep recession!
Finally, Justice Roberts turned to the bumbling, tongue-twisted and goofball opposition party — sometimes called the “Republican” party but usually called the “stupid” or “slow” party — and told them to man up, quit whining and fix the horrific mess that they are so much responsible for. They may have messed their diaper, but he’s not changing it for them. ...
Now, going into the election, President Obama has his law and now he must live with it. He must own it. And he must be judged for the massive taxes his law will levy on innocent Americans.
And then it will be up to Mitt Romney and a new set of Republicans to clean up this legislative cesspool.
Meanwhile, Legal Insurrection's William Jacobson is decidedly not quite as optimistic as Will & Hurt:
If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….
I might be inclined to agree with you.
But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.
And finally, we should all be sure to properly thank groups like labor unions, AARP and Big Pharma who helped push this, the biggest tax increase in history. You want ObamaCare repealed? The ballot box in November is the way to do it.
**Update: Hot Air's AllahPundit reminds us that the ObamaCare bill actually did originate in the House. Well, sort of:
The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before.