The quarrel among conservatives over the significance of the Supreme Court's rulings on health care reminds me of the saying about academics: Their fights are so bitter because so little is at stake. We have one conservative school of thought (see Randy Barnett, George Will), arguing that John Roberts was brilliant, pulled a Marbury, gave way on an unimportant issue in order to save the constitution by affirming Commerce Clause limits where they really count. And we have another equally conservative school of thought (see John Yoo, the Wall Street Journal's editorial board) arguing the judgment was an unforgivable sell-out that massively expands the federal government's power to tax and trample more generally over American liberties.
According to conservatives, you have two choices: Roberts is either a legal genius and astute political tactician, or a spineless idiot.
Maybe liberals will be equally divided once they've stopped celebrating ACA's survival. (The blow to Medicaid expansion might be more wounding than they think, once the numbers start to be crunched.) But the utter confusion in the conservative camp is entertaining enough to be going on with. It's educational too. It tells you something about the dangers of legislation from the bench--and of legislation so carelessly drafted by Congress that it invites the courts to come in and make it even harder to understand.
The one clear winner from the judgement is the Obama administration. I'd say 98% of the ruling's significance resides right there. Obama's signature legislative achievement survives, for now. If the law had been crippled or struck down, there'd have been no political opportunity to fix it in the foreseeable future. The effort to reform US health care would have been set back for years--in my view, a bad thing.
The Court's ruling has almost no further significance, constitutionally speaking. It doesn't expand the government's powers in important new ways, and it doesn't confine them in important new ways. Once you've said the ACA survives, you're done. The rest is sound and fury signifying nothing.
The "strategic victory" school is wrong because the new Commerce Clause limits on government action are figments of its imagination. What use is it to say that the Commerce Clause doesn't empower the government to compel you to buy something if you say in the same breath that the government can tax you for failing to. To anybody but a lawyer--where would we be without them?--it's a distinction with no practical difference. This is where John Yoo, for instance, is correct:
The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy...Nor does it rule out any law that the government might plausibly want to introduce. True, the government won't be able, under its Commerce Clause power, to send you to jail for failing to buy a solar panel for your roof; but it will be able to tax you as much as it deems necessary to achieve the same effect. This is the great blow for liberty we're being asked to celebrate?
Well then, you might say, Yoo and the other conservatives must also be right that the ruling has enlarged the government's power to tax. But it hasn't. The existing tax code, in all its stupendous complexity, already taxes activities and inactivities (eg, the decision not to take out a mortgage; more generally, the decision to refrain from any of the countless activities that attract taxpayer subsidy) without constitutional restraint. The ruling may have presentational and hence political implications for the way fiscal rewards and penalties are described--but if implicit taxes and subsidies become more explicit as a result, that will be a good thing. Substantively, nothing has changed. The federal government's tax powers were effectively unlimited before the ACA ruling, and they still are.
Congratulations, by the way, on creating a federal government with effectively unlimited tax powers. Not what you quite intended, I suppose, but in other respects it's worked out very well. Happy Fourth of July. I'm taking a few days off and will see you again at the end of next week.
This article available online at: