An Act of Great Cunning
30th June 2012
Paul Rahe looks at the Obamacare decision.
In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.
At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. He compared the decision to Marbury v. Madison, where Chief Justice John Marshall surrendered in the case before the court while firmly and eloquently reasserting the Court’s right and responsibility to engage in judicial review; and Reynolds pointed to one crucial fact: Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.