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Morning Jay: The Case for John Roberts

6:00 AM, Jun 29, 2012 • By JAY COST
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Many conservatives are feeling betrayed by the chief justice's vote to uphold Obamacare. But there's a counterintuitive case to be made that John Roberts's decision is largely a victory for conservatives.

John Roberts

Every time I visit Washington, D.C., I am struck by a single, terrible thought: It is not just that conservatives are losing the various battles over big government, but they have been losing the war for generations. The most conservatives are ever able to do is tinker at the margins – and celebrating small victories like lowering marginal tax rates is a sign of just how low our sights are set.

Why has this happened? After all, this was a country founded in direct opposition to unlimited governmental power. How have we arrived at a point when the feds can do just about anything they want?

It is because, at critical moments in the nation’s history, the advocates of limited government were on the losing side of the political equation, and the opposition was very effective at consolidating its victory. Not only did big government advocates implement policy changes, they also brought about huge structural innovations to the way the government functions.

The progressives of the early 1900s managed this with the 16th Amendment, legalizing the income tax and opening up whole avenues of power that had been previously off limits. The political genius of that move must be admired: The left got its hands on the government for a relatively short period of time, but it sure made hay while the sun was out. We’re still paying the price today -- quite literally. Similarly, the New Deal took advantage of a national emergency to ram through qualitative expansions in the scope of the federal government; it was not just that Washington was doing more, it was that it was doing things it had never done before. Ditto the 1960s, when LBJ exploited public grief over the assassination of JFK to push through new changes.

This points to the gravest danger of Obamacare. Much like the progressives of the 1910s, the New Dealers of the 1930s, and the liberals of the 1960s, Obama and his allies assured us that this law was entirely consistent with what had been offered in the past. Nothing new to see here; move along! But that was not at all true. In fact, Obamacare represents the single greatest qualitative expansion of federal power in 80 years.

But, in a subtle way, Chief Justice Roberts did away with much of that. Where he could justify Obamacare on existing federal authority, like the taxing power, he let it stand. Though his factual argument here was admittedly strained, his legal reasoning seems to have created no qualitative expansion of the federal taxing power, which is very broad to begin with (and has been for centuries). But where there was no extant power to back up the bill, he struck it down. In so doing, Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Unfortunately, the chief justice did not go the whole nine yards and just repeal Obamacare. However, the voters can still attend to that in November! It's worth remembering that there are so many people who will be made worse off by the bill – seniors who lose their Medicare Advantage, employees who get dropped from their employers’ plans, families who will see their premiums increase, businesses that have to endure the employer mandate, the taxpayers who have to foot the bill for the whole thing – that it is far from difficult to forge a broad political coalition to kill off the bill.

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