Pessimistic Thoughts

1.  When looking at the Obamacare case, many wondered if the individual insurance purchase mandate was severable from the rest of Obamacare.  According to the Chief Justice, the mandate is severable from itself.  You take (what he admits to be) an unconstitutional scheme of mandate and penalty.  You eliminate the mandate by saying there can be no such mandate and you call the penalty that the law calls a penalty a tax because a tax in the absence of a mandate would be okay, and since there is no longer a mandate, it is possible to reimagine the penalty as a tax and therefore the new law without the mandate and the penalty, but with an optional tax, is constitutional even though that is not the law that Congress actually passed.   Everybody got that?

2.  The argument from judicial minimalism fails.   There are a lot of things that you can call a judge rewriting a law so that the law becomes what Congress should have passed if Congress had asked the judge how to make an unconstitutional law constitutional.  Judicial minimalism isn’t one of those things.

3. I hope that Roberts really believes his sophistry.

4.  This idea that the Roberts has implanted a limited government time bomb in the Obamacare ruling by writing that the interstate commerce clause does not give Congress the power to mandate that an individual purchase a product from a private company is premature at best.  The practical effect of his ruling is that it leaves Obamacare’s mandate and penalty scheme in place but under a different name, but it is worse than that.  The four liberal Justices who joined Roberts expressly affirmed that Congress had the power to mandate that individuals buy health insurance.  One more liberal Justice and we will get a case that will uphold the mandate under different reasoning.  The brilliant John Roberts “enumerated and limited government time bomb maneuver” just becomes a trivia question about the original superseded and obsolete rationale for how the Supreme Court upheld the power of the Congress to mandate that individuals buy health insurance.

5.  I would like to buy Michael Knox Beran’s idea that the Chief Justice’s refusal to  strike down Obamacare was an example of Roberts trying return us to the tradition of the first half of the 1800s when judicial review of congressional statutes was a very seldom used power.  On a completely unrelated matter, did anyone else notice that Roberts voted to strike down the federal Stolen Valor Act on the same day Michael Knox Beran thinks John Roberts taught us all a valuable lesson about how judicial review should only very, very rarely be used?  I think I’m getting mixed messages.  Though that doesn’t mean Robert was wrong in his vote to strike down the Stolen Valor Act (my first instinct is to agree with him.)

6.  I agree with Wesley J. Smith that the Supreme Court endorsement of Obamacare’s constitutionality will serve to improve the law’s popularity.  Conservatives can talk all they want about the “AHA!” moment where the Court calls the Obamacare penalty (er.. tax . . . er . . . rutabaga) a tax.  The same majority opinion also refers the tax as too small to actually compel compliance and is therefore just a small optional tax for those who choose to forgo health insurance.  That doesn’t mean that arguments against such a policy can’t be marshaled.  But are those arguments more or less effective than the argument that Obamacare was an unconstitutional extension of federal power?  For those who don’t have a settled opinion on the matter, but who might have leaned toward the idea that Obamacare was unconstitutional, the Supreme Court just gave them every reason to give President Obama the benefit of the doubt.