A distressing number of smart conservatives are still clinging to the argument that Chief Justice John Roberts’ Obamacare decision is a victory for small government conservatism since it somehow “bars further expansion of the size and scope of the federal government.”
This is false.
Roberts did say some nice things about the limits of the Commerce Clause, but by choosing not to strike down the law, Roberts rendered these words worthless. Clark Neily of the Institute for Justice explains why:
First, as litigators know very well, it is always more important what a court did than what it said. Courts deal in holdings, not rhetoric, and from that perspective the decision to uphold the key ACA’s key provisions, including the individual mandate (can we still call it that?), appears to have been a significant blow to the cause of limited government. Notwithstanding the majority’s assurances about the limits of federal power under the Commerce, Necessary and Proper, and Spending Clauses, the Court ratified what many perceive as the most significant expansion of federal power in 75 years.
Worse, by rewriting Obamacare as a tax, Roberts undermined the political accountability at the heart of our Republic.
Taxes are unpopular. Politicians who want to raise revenue, or regulate behavior through mandates, are desperate to call their legislation anything other than a tax. Roberts’ decision ensures they can do just that. While Obamacare was in the legislative realm, President Obama and the Democrats swore up and down that the mandate was not a tax. If they had to defend it as a tax, it might not have passed. But they didn’t, and it did. And Roberts’ decision let them get away with it. After Roberts’ decision, why would any politician ever honestly label their law as a tax? If anything, Roberts’ has significantly expanded federal power by signaling that the Court will rewrite any law to fit under the taxing power’s general welfare clause.
Finally, as John Yoo points out, the Medicaid rollback is also far less than it seems:
The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too?
Conservatives who want to defend Roberts need to start identifying some federal policies that Roberts’ decision could be used to reliably strike down.