Of Silver Linings and Clouds

Today’s USA Today quotes me on the individual mandate decision as follows:

“You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws by crafting them as taxes instead of mandates.

The quote is accurate. 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. Although the law might be repealed, there is also a good chance it will not be. Relative to a decision striking down the mandate that might have been and almost was, this result is a disappointment.

Some might wonder whether the above is consistent with other statements I have made to the effect that the decision also offers supporters of limits on federal power cause for optimism. Part of the explanation is that I spoke with the USA Today reporter less than an hour after I got the decision, and I have since had more time to study it closely, as well as read commentary by both supporters and opponents of the mandate who believe the Court’s decision gave a lot of ground to the latter.

But, ultimately, I don’t think there is any great inconsistency in my view. The decision is a disappointment relative to one that actually invalidated the mandate, and also dangerously expands Congress’ tax power. I fully acknowledge that. But at the same time it endorses important constraints on Congress’ powers under the Commerce and Necessary and Proper Clauses and lends new respectability to the notion of strong judicial enforcement of such limits. It makes it very difficult for anyone to seriously argue that such enforcement could only be advocated by wacko extremists or people ignorant of constitutional law. I am also far from certain that the Court will stick to Roberts’ dubious Tax Clause analysis in future, less politically charged cases. Finally, I believe that the Medicaid/Spending Clause ruling – which I don’t think I discussed with the USA Today reporter – is actually far more of a silver lining than a cloud.

Obviously, losing the mandate case was a significant setback. But if we had to lose at all, better this way than almost any other. Whether the positive effects of the decision predominate over the negative ones in the long run remains to be seen. 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.

Perhaps most important, it depends on the future development of our constitutional culture. Over the last twenty to thirty years, the idea of strong judicial enforcement of limits on federal power has gained a lot of ground. It has moved from being the preserve of a small number of activists and academics to becoming an integral part of mainstream legal discourse. Many jurists and academics still hate it; but they now have to take it seriously. As Jack Balkin might put it, judicial enforcement of federalism has moved from “off the wall” to “on the wall.” Whether we can make further progress is difficult to say. Much could potentially go wrong. But at this point, I am guardedly optimistic.

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