President Obama suggested that Chief Justice John Roberts upheld Obamacare under the taxing power because he wanted to “preserve the law” while leaving the door open to weakening Commerce Clause precedents.
“It was interesting to see them, or Justice Roberts in particular, take the approach that this was constitutional under the taxing power,” Obama told Rolling Stone in an interview published today. “The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress’ power under the Commerce Clause in future cases.”That’s not far from Charles Krauthammer’s take on the decision. “The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation,” he wrote for National Review. “And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf. The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.” Obama predicted that future generations will view Obamacare as “the last piece to our basic social compact.” He also approved of “Fair Shake” as a two-word distillation of his domestic agenda, a la FDR’s New Deal. “I’d be comfortable with that, and hearing it from a historian, it sounds pretty good to me,” Obama said of “Fair Shake.”