Silver Lining or Sow's Ear

What's that word Ilya Somin likes, again... was it "overwrought"? Here's his effort to find a silver lining in what he views as a bad decision:

I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute.

You see, the Supreme Court isn't the final arbiter of what is or is not constitutional. Those five votes mean nothing without Somin's endorsement. Seriously, I understand why people, particularly laypeople, complain that matters deemed constitutional by the Supreme Court are "unconstitutional", but last I checked Marbury v. Madison was still good law.

One thought that comes to mind is, "Be careful what you wish for, because you just might get it." One of Somin's co-bloggers was the inventor of the "activity/inactivity" distinction and it must feel pretty good to devise an entirely new legal construct to defeat a specific major statute and, in less than two years, have five justices of the Supreme Court embrace it. But this decision would have been a lot cleaner, a lot more honest, had the Court followed a traditional Commerce Clause analysis. It would have been possible to address "activity/inactivity" within that context, and to make clear to Congress that the mandate was only permissible because of the unique aspects of the health insurance market. But with four justices embracing the newly concocted distinction as a basis to overturn the entire law, rather than producing a modest decision that clarified the limits of the Commerce Clause, Roberts ended up endorsing an extraordinary expansion of the tax power of Congress.

Somin adds, "I am also far from certain that the Court will stick to Roberts’ dubious Tax Clause analysis in future, less politically charged cases." If you take Roberts' position at face value, the expansion of the tax power is far more frightening than the "activity/inactivity" distinction. If you take the position that Roberts didn't really mean it - that he was making an argument of convenience in order to save the statute, but he'll never again support such broad tax powers - you would appear to be taking the position either that Roberts contrived a justification, to be used once and never used again, to uphold an unconstitutional statute, or that he was sufficiently embarrassed by the idea of using a specious Commerce Clause analysis to overturn a statute he believed to be constitutional that he resorted to a second specious argument to save the statute. Is there a third alternative?

The "activity/inactivity" distinction is now a footnote, about as important to future litigation as Third Amendment jurisprudence.¹ Congress will simply be careful about its phrasing, and will never again pass a mandate. Yes, it will pass taxes, subsidies, or regulate "inactivity" in a manner that is virtually indistinguishable from the regulation of activity but, as they say, same as it ever was.

Somin dreams of a future in which the Supreme Court revisits the issue, "It depends on future events such as the identity of the next few Supreme Court appointments, and whether or not Obama’s health care law can be repealed or modified." Odd, isn't it, how he doesn't see that as the job of Congress?

In my opinion, there never should have been a mandate. It would have been much more simple, for example, to impose a modest tax that would be applied toward premiums or returned as a tax credit for the insured. But that sort of thing is impossible in this era of Republican demagoguery about "new taxes", so Congress adopted the Republican idea of the mandate. And the next thing you knew, Republicans were arguing that the sky was falling. Now, as it turns out, we did get a tax - because Justice Roberts says it's a tax.

One of Somin's co-bloggers, David Kopel, wrote a post titled, "Next step: Repeal the individual mandate because it is unconstitutional". Again, he means "should have been held unconstitutional", but he gets ahead of himself, dreaming of a future court packed with justices who think like Alito or Scalia.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress.

I can only hope that, in the wake of this decision, the Repubicans get over their obstructionism and participate in the creation of a superior alternative to the mandate. Unless that happens, though, I think Kopel is dreaming if he believes the health insurance industry will stand for its repeal. If it is repealed or modified, I disagree that the impact of the mandate will be significant. Mandates seem principally to be a Republican thing - other than the Republican ideas for a health insurance mandate and Social Security privatization, what else is there? If the Republicans again push Social Security privatization they'll follow Roberts' lead and say "It's a tax, not a mandate - and we're reforming the tax to make it better." Beyond that, actually including that, it's all semantics.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Funny, isn't it, how reliance upon the democratic process is possible, and perhaps even better than a Supreme Court ruling, once you lose your case in court. But you know, maybe that should have been the Republican Party's starting point. Winning at the ballot box, not the court. Republicans used to at least pretend they preferred that approach....

Update: Via the VC:

"I think I figured out what happened. Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?"

(Randy Barnett being the inventor of the "activity/inactivity" argument).
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1. Before you go looking, there isn't any.