Judge Roberts always tries to be as narrow as possible and avoid big decisions, but if he were forced to rule on the Commerce Clause alone, he faced a big either/or: Make a big move in practice (strike down a major piece of legislation) on the one hand, or affirm a semi-innovative constitutional doctrine that he doesn’t believe in and finds dangerous, on the other. So he found an out in the tax argument: Congress has power to lay taxes to provide for the general welfare (not definable by the Court), and really, the mandate is just a tax on not being insured. He tortured the definition of tax rather than the definition of commerce- even there, he made clear that he was going with a tie-goes-to-the-government, not really affirming much of anything.
– People often say the Court encourages public acceptance of expansions of government power by ruling in favor of them- reassuring the public of their Constitutionality. If this is so, Roberts insured that his opinion did as little as possible to lend legitimacy to ObamaCare. He went with a technicality, and an obviously forced argument at that, rejecting the sweeping, rhetorical affirmation of Justice Ginsburg.
People apparently assume that if a law were unconstitutional, the Courts would strike it down. Given that Courts are habitually deferential to the government, and have their own legitimacy threatened if they go too much against the political branches that are allegedly responsive to the popular will, this assumption is a bit unfortunate, but it allows supporters of state expansion to use Court decisions as an offensive weapon. Hopefully Roberts forestalled this, and the power of the dissent, along with the government’s oral argument defeats, will reenergize opposition. Moreover, by affirming that the mandate is only legal as a tax, he may encourage consumers to engage in cost-benefit analysis rather than feeling an obligation to society to buy insurance.
– That said, Roberts’ tax argument is bullshit. Not only for the reasons stated in the dissent, but because rhetoric is the only real distinction between taxes and fines.
If Congress can just call any mandate a tax, it can force us to do anything, and there wasn’t much point in enumerating powers. Roberts tries to find some outs, such as saying the mandate won’t impose a prohibitive cost, but these are all arbitrary rather than definitional.
The real difference is in intention- does Congress intend to stigmatize something as illegal, or merely discourage it and raise revenue. Which goal backers present to the public will dictate the nature of the debate over the issue. For the legislation (in the actual words of the law) to present itself as a mandate to the public, and the Constitutional defense of the legislation to declare it operationally a tax, is contrary to our system of representative government. It was actually anti-republican judicial activism for Roberts to rule on the grounds that he did. The dissent hinted at this when it mentioned that only Congress, as an institution connected to the people, has the power to tax.
More to come…