But I am not in favor of a “broader” purpose for the Supreme Court. Just tell us whether a law passes constitutional muster or not. And if the explanation is so obscure that plain-thinking Americans familiar with the Constitution itself can’t see where you’re coming from, maybe we need to mostly ignore the reasoning as far as precedent is concerned.
One good thing is that the majority of the court (Roberts plus the four voting against constitutionality) state clearly that the mandate cannot be construed as a constitutional extension of the commerce clause. In fact, Roberts spent so many pages (about 20) saying that, the immediate assumption by CNN and Fox News was that the law must have been struck down, which they needed to walk back a few minutes later.
What I think should not have happened was that, rather than throw out a bad law (that’s a euphemism for what this monstrosity actually is), Roberts went out of his way to find a way to allow it. He declare that the mandate is simply a tax. The biggest tax on middle and lower class Americans (or maybe bigger than on any people at any time in history)—even though Obama et al spent a great deal of energy and words asserting that it was not a tax. [Ironically, in oral arguments, the administration’s lawyer, Verilli, had to argue one day that the law was certainly not a tax, and another day that it certainly was; even Sotomayor pointed out that you can’t have it both ways.]
This law was passed without any help from Republicans—at a time when no GOP help was needed. This is all, in its entirety, the fault of Democrats, who had total control of both houses at the time. Still, it required finagling, bribery, and midnight manipulation to shove it through one weekend night in March 2010. I think we can say without doubt, if this had been billed as a huge tax on low and medium earners, there is no chance it would have passed.
One description I saw of how this mandate/tax works goes something like this:
Customer: No thank you. I don’t want to purchase that pack of gum.
Salesperson: OK, tax on that will be $2.35.
I spent much of yesterday doing summer reading: 1776, by David McCullough. I think I’ll post more about this next week, in honor of the 4th of July. But the idea that struck me was that, during the early part of the Revolutionary War, the good guys were severe underdogs. If they could have stepped back and seen how outgunned they were, they might have resigned themselves to the tyranny. But they trusted Providence (the hand of God intervening to help them) and just did whatever they could conceivably do for their great cause. They were mostly everyday people, unqualified for what was required of them. And yet we know the outcome.
It may be that what we just experienced was the equivalent of Bunker Hill:
Bunker Hill was proclaimed a British victory, which technically it was. But in plain truth His Majesty’s forces, led by General Howe, had suffered more than 1,000 casualties in an appalling slaughter before gaining the high ground. As was observed acidly in both London and Boston, a few more such victories would surely spell ruin for the victors (p. 8).
We suffered a literal loss yesterday. But it may be that the limit to the commerce clause, as well as the ability for states to opt out of the Medicare section—followed by determined follow-up by voters and their new representatives this November—this “victory” by the anti-freedom side will surely spell their eventual ruin. With the help of Providence, may it be so.