Ruling not all bad for conservatives

July 2, 2012


— Conservatives won a substantial victory on 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 Roberts 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’ rationale — that was pregnant with rampant statism.

The case challenged the court to fashion a judicially administrable principle that limits Congress’ 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 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.”

The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.

The mandate’s opponents favor a federal government as James Madison fashioned it, one limited by the constitutional enumeration of its powers. The mandate’s supporters favor government as Woodrow Wilson construed it, with limits as elastic as liberalism’s agenda, and powers acquiring derivative constitutionality by being necessary to, or efficient for, implementing government’s ambitions.

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

When Nancy Pelosi, asked where the Constitution authorized the mandate, exclaimed “Are you serious? Are you serious?” she was utterly ingenuous. People steeped in Congress’ culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s advantage. By sharpening many Americans’ constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the “legitimacy barrier”: Is it proper for the federal government to do this? Conservatives can rekindle the public’s interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.

Any democracy, even one with a written and revered constitution, ultimately rests on public opinion, which is shiftable sand. Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’ decision, conservatives can see the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.  

— George Will is a columnist for Washington Post Writers Group.    


jafs 5 years, 9 months ago

This is a remarkable attempt to "spin" the decision in favor of conservative thought.

Whether it's called a "tax" or something else, this gives the federal government the same power, to mandate purchases and impose penalties if the mandate is ignored.

It's an expansion of federal power, and in no way consistent with conservative ideology.

Paul R Getto 5 years, 9 months ago

Chief Justice Roberts used his conservative, nonactivist genetics to write his opinion. This is a good thing. Lost in this week is the Supreme's rejection of the "Stolen Valor Act,"a victory for free speech.

Alyosha 5 years, 9 months ago

G. Will is incapable of seeing his own blind spots, and for a writer who seeks to persuade, that's always a fatal flaw.

He cannot see that his formulation that "People steeped in Congress’ culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle" is unsupportable on its face, and that he sets up a straw man argument.

Many supporters of the mandate believe, with 70 years of Supreme Court legal precedence (which is the law of the land whether you like it or not) in support, that Congress does have the power, not unlimited, to regulate a national economic sphere (national presumes inter-state, of course) like the health insurance industry.

Reasonable citizens can disagree that that power does indeed pass Constitutional muster, but G. Will is not being reasonable in his characterization of other citizens' beliefs. As such, because he deploy this unethical and hence immoral rhetorical strategy, reasonable citizens interested in the best public policy for all are wholly warranted in discounting whatever he might say.

booyalab 5 years, 9 months ago

Yeah, true conservatives are loving the precedent set for sneakily imposing conditional taxes on everyone. Will must be crazy.

Jim Phillips 5 years, 9 months ago

Well, here is the silver lining. The High Court ruled it was constitutional only as a tax (Justice Robert's ruling) despite the fact the the Obama administration claimed it was not; and they still are. So, given the fact that it was ruled by the Court to be a "tax", it only takes a simple majority in the Senate to repeal it where it would take 60 votes to repeal it otherwise. Should Republicans win the Senate and keep the House, bye-bye tax.

I hope you haven't started celebrating despotism/judicial activism too early.

rtwngr 5 years, 9 months ago

I agree, Guardian. It can be also be killed by scaling back the enforcement arm of the law, the IRS. If the country were to go to some sort of revamped tax system, like a flat tax, the IRS would be largely unnecessary. Additionally, if a GOP president were elected, he would have the ability to appoint a new HHS secretary who can then re-write the rules because that's what the current bill allows. This is starting to have the feel of the of 2010 when all of those dems lost their seats in congress. Any of them up for reelection this year had better hold onto their shorts.

jafs 5 years, 9 months ago

I see now.

You don't really have a problem with the HHS being able to administer the program, as long as "your side" is in charge of it.

So much for a consistent philosophy of government.

yourworstnightmare 5 years, 9 months ago

This was a great ruling for true conservatives.

Not so much for right wing liberal populists.

yourworstnightmare 5 years, 9 months ago

I must admit that I was sort of hoping that Obamacare would be ruled unconstitutional.

I also must admit that I am happy because this was a political loss for the tea party. Whether it was a win for Obama remains to be seen.

After all, this was a republican idea that was espoused by republicans for nearly twenty years as a market based alternate to a single payer, medicare for all system.

If the GOP decides that their own idea is untenable, which they have, what do they have to offer instead?

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