My liberal friends and family have been crowing the last couple of days about the Supreme Court decision on Obamacare. Today, the New York Times admonishes Republicans to start building the infrastructure on which the massive overhaul of American health care would be built. Conservatives, libertarians and Republicans are wailing and in mourning.
But. Is all as it seems on the surface?
Over and over, I offer the disclaimer that I am no constitutional scholar. Offering my own humble opinions seems silly, given that others have spent a lifetime studying this topic. Nevertheless, I did take one constitutional law course as a grad student (heh) - and my years of logic and philosophical training do assist me now and then. With that, I offer this opinion: all may not seem as it is on the surface.
The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.
Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.
This was the first significant loss for the federal government’s spending power in decades. The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extraconstitutional limit on that power is a worrisome development.
Katyal uses language to indicate that this is "worrisome". He appears to be liberal, and thus concerned that this case will thus curtail the ever encroaching reach of the federal government.
From what I have read so far, Katyal seems to be correct. Ergo - those who are laughing now may not be laughing last. Take solace, lovers of liberty. All is not as it sometimes seems on the surface.
He who laughs last laughs best.