Why SCOTUS Has Made a Terrible Mistake

Today’s Supreme Court ruling upholding the Affordable Care Act, also known as Obamacare, was a bombshell. In brief, Chief Justice Roberts supplied the critical fifth vote to hold that Congress may use its taxing power to require individuals to purchase a government-approved health insurance policy.

The decision itself is complicated, with multiple opinions that will need to be studied carefully over the coming days and months. In a nutshell, however, it may fairly be said the Supreme Court has just authorized the most significant expansion of federal power since the New Deal. Unfortunately, it has done so in a way that will make it very difficult for average people to intelligently discuss and debate the merits of the decision. That’s because the decision rested not on an interpretation of Congress’s authority under the Commerce Clause (as augmented, perhaps by the Necessary and Proper Clause), but rather under its taxing power — which is among the most specialized and obscure subjects in all of constitutional law. 

The heart of the Court’s reasoning appears to be this: While Congress lacks any specific textual grant of authority to regulate health care or compel Americans to purchase health insurance, it may use its taxing power to create incentives for people to do things — like buy health insurance — that it wants them to do. Putting aside for a moment that President Obama himself assured the country that the individual mandate was a penalty not a tax, this seems like a remarkably roundabout and open-ended way of exercising federal power over individuals. One cannot help but wonder what other activities and transactions Congress may now “incentivize” using the limitless sweep of the tax code.

In upholding the ACA, the Supreme Court seems to have accepted an essentially boundless theory of federal power. It has also provided Congress with a roadmap for how to exercise powers not specifically enumerated in the Constitution. Only time will tell how the Obamacare decision will play out — whether Congress will accept it as an invitation to regulate even more picayune subjects than it does now (keep in mind that the ACA’s 2500 pages of text include at least 20 new or higher taxes on everything from indoor tanning salons to a bio-fuel called “black liquor”), or instead interpret today’s close call as a warning from the Court that Obamacare approaches the very furthest limits of federal power.

Thomas Jefferson may well have answered that question two centuries ago when he warned that “The natural progress of things is for liberty to yield and government to gain ground.” If so, then it is terribly important for supporters of constitutionally limited government to reflect on what happened today and why.

Today, the Supreme Court deferred to a congressional enactment that was not supported by a majority of Americans, was enacted along strictly partisan lines, and has already yielded a rich harvest of unanticipated expenses, complications, and growth-stifling uncertainties. America and the Constitution needed a fully engaged judiciary today; unfortunately we got abdication and reflexive deference instead. We must get serious about appointing judges who are themselves serious about enforcing constitutional limits on government power. Starting now.

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Clark Neily

Clark Neily is a Senior Attorney at the Institute for Justice. He litigates economic liberty, property rights, school choice, First Amendment and other constitutional cases in both federal and state ?courts. Before joining the Institute for Justice, Clark spent four years as a? litigator at the Dallas-based firm Thompson & Knight, where he worked on a wide variety of matters? including professional malpractice, First Amendment and media-related? matters, complex commercial cases and intellectual property litigation. Clark received his undergraduate and law degrees from the University of ?Texas, where he was Chief Articles Editor of the Texas Law Review. After ?law school, he clerked for Judge Royce Lamberth on the U.S. District? Court for the District of Columbia.

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