O.K., I’ll admit it up front. I haven’t yet read the decision, so I’m going entirely by what I’ve read about decision, which amounts mainly to half-digested reactions. My first thoughts are subject to massive revision, after I’ve had the time to read and think.
Nevertheless, here goes nothing . . . .
First, according to this Court, it seems that the federal government’s taxing and spending authority is more extensive than its authority under the commerce clause. The mandate was upheld as a tax, not as a regulation of interstate commerce. Those who want to expand the reach of government—and they are legion—now have to phrase it in these terms. Since we have (for better or worse, more often than not the latter) used the tax code to offer all sorts of incentives and penalties for behavior, this isn’t necessarily anything new. I would have preferred a narrower reading of the taxing and spending authority, but that would probably have required a much greater judicial “revolution” than any majority on the current Court would have been willing to countenance.
Second, there is a bit of a silver lining from this proposition. Taxes are harder to justify politically—they’re, generally speaking, less popular—than “mere” exercises of government authority. To be sure, when roughly 50% of the country pays no federal income tax, this might be a less formidable barrier, but it’s a barrier nonetheless.
Third, connected with this is the politics of healthcare reform. The fact that the Affordable Care Act is constitutional doesn’t make it good policy. We can—and must—still argue about that. We must still ask the question whether the benefits we’re extending under the legislation are worth the real price we have to pay, whether, in other words, we shouldn’t call it the Unaffordable Care Act.
Fourth, it’s worth remembering that the real limitation on government is not the Supreme Court’s interpretation of the Constitution. The Justices are perfectly capable of getting it wrong. The real limit on government, the real mechanism for upholding the Constitution, is an electorate vigilant about its rights and responsible about its duties. We have long relied too heavily on the Supreme Court and have forgotten the wisdom of The Federalist Papers , which remind us that, by itself, the Constitution is merely a parchment barrier that will be maintained only so long as the citizens insist that their representatives respect it. The ball is in our court. If we want a limited government, we have to vote that way.
Finally, I may be mistaken, but the religious freedom issues posed by the contraceptive/abortifacient mandate remain. The litigation surrounding those issues will go forward, and we should not assume that the Supreme Court that upheld the Affordable Care Act will also uphold these regulations. In the long run, it’s more important to make the case in the court of public opinion that “big government” threatens all our liberties—including those most precious religious liberties—but that’s no reason not to work through the courts as well.
I’m disappointed by the decision and had hoped for something different. But if this serves to remind us of the importance of the primary political means for maintaining limited government, then some good has been done.
