Conservatives and the Court

It has traditionally been liberals, not conservatives, who have looked to the courts to implement their policy preferences. Whether it was racial and sex preferences, abortion, gay marriage, capital punishment or the "rights" of illegal aliens, liberals have attempted to move the country left by judicial fiat.

Judges, after all, are highly educated elites. The political views of people with advanced degrees tend to be liberal. It's far easier to seduce a few robed lawyers to issue congenial rulings than it is to undertake the hard and lengthy work of persuading millions of voters to elect people who agree with you.

Conservatives have been so battered by adverse court decisions over the years that we'd become anti-courtists -- toying with ideas to reduce the judiciary's scope (as Newt Gingrich mentioned during the primaries), emphasizing the antidemocratic nature of judicial usurpation of legislative functions and stressing the importance of judicial restraint.

But Supreme Court rulings in the past few years -- since John Roberts became chief justice -- had suddenly seemed to open up sunlit vistas of conservative victories on important constitutional questions. Not that conservatives longed to make school prayer mandatory or the government share of gross domestic product above 20 percent unconstitutional. Conservatives simply long for a return to judicial modesty and constitutionalism. In the gun control decision, the court affirmed that the Second Amendment protects an individual right to gun ownership. In Citizens United, the court upheld First Amendment protections on political speech. Was a decision putting limits on the infinite expansion of Commerce Clause power by Congress so unthinkable?

The case seemed incredibly strong. If, as Justice Kennedy put it during oral argument, Congress can compel participation in commerce in order to regulate it, what becomes of the idea of a government of limited and enumerated powers? If the Commerce Clause permits this, it permits anything.

It seemed that the Obama administration, by attempting to sneak a new tax past the public by disguising it as a mandate, had outsmarted itself. A tax would be clearly constitutional under the Congress's taxing power. A mandate to purchase a product clearly is not. The administration had contradicted and embarrassed itself by arguing first that the mandate was not a tax and then that it was.

So it was shocking to see Justice Roberts side with the liberals in upholding the individual mandate as constitutional. It was an odd straddle. Roberts ruled that critics of the law were correct: The Commerce Clause does not justify compelling economic activity so as to regulate it. "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation. ... That is not the country the Framers of our constitution envisioned."

The opinion is direct and unequivocal that the government's claim of authority under the Commerce Clause was unconstitutional, and it gave the back of its hand to the claim that the Necessary and Proper Clause granted sufficient authority. It was everything a conservative could wish for. But then the chief justice (with the votes of the court's four liberals) reached for an alternative. If you call the mandate a tax, Roberts wrote, it falls within Congress's taxing authority.

While shredding the government's case that the Commerce Clause granted sweeping authority to regulate even nonactivity, the majority opinion vitiated all of that beautiful reasoning by permitting the law to stand as a tax. It doesn't even require Congress to pay heed, in future, to truth in labeling. If the Congress passes a new law that asserts unprecedented power, it needn't bother to call it a tax (and risk the voters' wrath), as the court will find a way to call it a tax later.

Roberts bent over backwards to find the law constitutional, most likely because he was loath to see the court attacked. His written explanation was a conservative one: "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

True enough, but the court is tasked with protecting the Constitution and clearly failed to do so here. A key pillar upholding limited government has been kicked away. If the practical result is to energize opposition to President Obama's re-election, it may turn out to a proverbial blessing in disguise. But there is no point in denying the damage.

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