The Magazine

Undoing the Damage

The (legal) case against Obamacare.

Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
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That Chief Justice Roberts characterized the individual mandate as a tax was the critical development in NFIB. Interestingly—a point Blackman doesn’t treat in his narrative—the joint dissenters didn’t dispute, as a general matter, the need for judicial restraint and for saving a statute from unconstitutionality in a case where the law under review is, by its terms, unclear. But for them, that was precisely the problem, for the text of the law was clear in every respect: “[W]e cannot,” said the justices, “rewrite the statute to be what it is not.” 

Blackman sees, in the constitutional challenge to Obamacare, certain advances for limited government. Congress now may not invoke the commerce clause to “simply force a person to buy a product.” And if Congress turns to the tax power to accomplish such a goal, “it must take the political consequences of calling it a tax,” as Obama refused to do when the law was being debated in Congress, changing his tune only after the lawsuits were filed. Moreover, “for the first time ever limits have been placed on Congress’s powers to condition its monetary grants to the states.” 

Blackman also sees shifts in our “constitutional culture.” They include a Supreme Court more willing “to police the outer bounds of the federal government’s power, in terms of both federalism and enumerated powers”; judges, on pain of being accused of activism, more willing to “strike down laws by enforcing the entire Constitution,” including its structural provisions; and a federal government on notice that it “will need to justify further expansions of federal power.” 

It will take time to determine whether these actually are doctrinal advances and cultural shifts. Subtract a judicial conservative from the Court, and add, from the hand of Barack Obama (who has three years left in office), a judicial liberal, and the outlook for limited government won’t be as good. 

In NFIB, Chief Justice John Roberts wrote that “it is not our job to save the people from the consequences of their political choices.” Now, a year and a half after the case was handed down, we know more about “the consequences” for health care of choosing a president and Congress determined to pass the law that they did. The Affordable Care Act is not unconstitutional, according to the Supreme Court, but it is proving to be a policy and political disaster, and repeal-and-replace never sounded so good. For that to happen, the people will have to make the right political choices in 2014, and again in 2016. 

Terry Eastland is an executive editor at The Weekly Standard.