In the preceding post, I alluded to commentators who found silver linings in Chief Justice Roberts’s alignment with the Court’s liberal wing in upholding the individual mandate. I feel compelled to say more about the supposed silver linings.

I begin with Ilya Somin, writing at The Volokh Conspiracy:

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity.

But, as Somin points out:

The problem is that Roberts then proceeds to “empower Congress to make those decisions [to buy health insurance]” for us under the guise of imposing taxes.

Why did Roberts not simply join the four dissenting justices and throw out Obamacare while making clear the limits on Congress’s Commerce Clause power? The same (hypothetical) majority opinion also would have found unconstitutional the feds’ expansion of Medicaid.

Sean Trende, writing at RealClearPolitics, has much to say in Roberts’s defense, including this:

Thursday’s health care ruling shocked most observers. It upheld the health care law as constitutional. But rather than find that the law was justified under Congress’ authority to regulate commerce, it instead found it was justified only under Congress’ power to tax. It also imposed limits upon Congress’ ability to condition spending grants to the states upon those states taking certain steps. To my knowledge, former Solicitor General Walter Dellinger was the only person who thought that the court would ultimately rule on those grounds. I certainly was surprised.

Even more surprising, the decision was 5-4, and Chief Justice John Roberts authored the majority opinion upholding the law, rather than Anthony Kennedy. Conservatives are flabbergasted by the chief’s decision (or, in their view, betrayal)….

But I think if you scratch the surface here, Roberts embarked upon a gambit much like [Chief Justice John] Marshall did 200 years ago [in Marbury v. Madison]…

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented….

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it….

And the decision may help to ensure a GOP sweep in November by energizing unenthusiastic conservatives and fiscally prudent independents.

Trende continues:

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers….

The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote….

Roberts has basically … [i]nsulate[d] the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues….

Yes, but Roberts and his conservative brethren have life tenure, and what the public thinks about the Court surely is less important that what the Court does. Giving ground to seem “nice” is a classic conservative blunder.

Perhaps I can find solace in a column by Tom Socca, writing at Slate:

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered….

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well)….

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

This strikes me as more of the same. But perhaps Trende and Socca are on to something. Roberts, by reaching out the the Court’s left, may have gained useful allies for future fights. Kennedy, despite his surprising (to me) absolute opposition to Obamacare, can and will stray off the conservative reservation without warning.

There is also the important and still-to-be-decided issue of Obamacare’s effects on religious freedom. This is from a post by Sarah Marshall and Jennifer Torre at The Foundry:

…The Court’s ruling to uphold Obamacare doesn’t mean the law has cleared its legal challenges, however. Twenty-three federal lawsuits against Obamacare’s Health and Human Services (HHS) mandate—which goes into effect on August 1—now take on added urgency….

The HHS anti-conscience mandate is a completely separate rule from the individual mandate, and its constitutionality was not considered by the Supreme Court in the cases decided today. The HHS mandate, along with the individual mandate and the rest of Obamacare, still presents a clear threat to individual and religious liberty. Nothing short of full repeal of the statute will adequately protect our freedoms from this federal overreach.

The next legal battleground against Obamacare resides in the fight to protect employers from the coercive requirement to provide coverage of abortion-inducing drugs, contraception, and sterilization under the HHS mandate….

Obamacare’s anti-conscience mandate affords the narrowest religious exemption in federal law, effectively covering only formal houses of worship. Countless other religious employers, like schools, hospitals, and religious charities, are forced to provide coverage for the mandated services despite moral or religious objections—simply because they step outside the four walls of a church to serve others.

Creating the choice to violate conscience or forgo providing health insurance entirely—and risk hefty fines under Obamacare—the HHS mandate profoundly and adversely affects many employers and the people they serve….

Perhaps this is one of the fights anticipated by Roberts. And perhaps he wants to win it by more than 5-4 (or to ensure that he wins it). Robert John Araujo of Mirror of Justice has some related thoughts:

[The following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

…[I]t would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future [as discussed in the preceding quotation].

Could Roberts be angling to enlist Ginsburg as an ally in the looming freedom-of-conscience cases? That strikes me as a long shot because Ginsburg — “good” statist that she is, will no doubt find a way to wiggle out of her implied commitment to the free exercise of religion. But Roberts’s real targets may be Justices Breyer and Kagan, who joined his opinion — including the ruling that the expansion of Medicaid was unduly coercive of the States.

If Roberts has made the political calculations attributed to him — and I wouldn’t be surprised if he has — my only wish is that his calculations prove correct. If they are not, he simply will have wasted what would have been a perfectly good majority opinion, namely, the dissent of Justices Scalia, Kennedy, Thomas, and Alito.

Today’s ruling by the U.S. Supreme Court in the matter of Obamacare (National Federation of Business et al. v. Sebelius, Secretary of Health and Human Services, et al.) is portrayed by some commentators as a victory of sorts for limited government. Consider the following excerpts of the Syllabus:

[T]he individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause….

The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.”…  The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”…

Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power…. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

So far, so good, but

for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”… In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”… the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax….

The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.”…

Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax.

What a strange tax it is that must be paid to the government in order to breathe life into a program for which there is no constitutional remit in the “limited and enumerated powers” of the government. The government’s powers to tax and spend are not open-ended; they must serve a constitutional purpose.

There is more:

[T]he Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.”… Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs…. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism….

Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The constitutional violation is fully remedied by precluding the Secretary from … withdraw[ing] existing Medicaid funds for failure to comply with the requirements set out in the expansion.

Again, gratifying as the holding may be to some parties, it assumes (and therefore affirms) the constitutionality of an act that “meet[s] he health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” Where does the Constitution set forth Congress’s power to do any such thing?

My outrage is echoed in the dissent by Justices Scalia, Kennedy, Thomas, and Alito; for example:

The striking case of Wickard v. Filburn, … , which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers… Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

Amen to that. And the same goes for Social Security and Medicare. (My words, not the words of the dissenting justices, unfortunately.)

Where does today’s ruling leave Americans? Further down the slippery slope to serfdom. The “slippery slope” is

an argument for the likelihood of one event or trend given another. Invoking the “slippery slope” means arguing that one action will initiate a chain of events that will lead to a (generally undesirable) event later. The argument is sometimes referred to as the thin end of the wedge or the camel’s nose.

That is to say, once it became accepted that the federal government could establish programs like Social Security, Medicare, and Medicaid, it became relatively easy to expand those programs to encompass the “national emergency” of the day. And so, the stage has been set for  government-run health care in the United States, with all that goes with it: long queues, worse care, rationing, and death panels, and more.

Another metaphor for the inexorable engrossment of state power is the ratchet effect,

the commonly observed phenomenon that some processes cannot go backwards once certain things have happened, by analogy with the mechanical ratchet that holds the spring tight as a clock is wound up.

The acceptance of the status quo (Social Security, Medicare, and Medicaid) as a baseline sets the stage for a ratcheting up to a new, more expansive and expensive status quo (Obamacare), on the ground that if X is good, X+ will be better. That X is good and X+ will be better are articles of faith, which become widely accepted without serious consideration of the burden they impose on the most productive citizens, the negative effect of that burden on the nation’s economy, or the liberty of the people. It has been heartening that most Americans have opposed Obamacare, in the main because of the perceived insult to liberty known as the individual mandate. But, alas, a majority of the Supreme Court has found a legalistic way in which to ratchet up the mainspring of government power.

Perhaps the best metaphor for today’s ruling is the death spiral. Reliance on government usually creates more problems than it solves. But, having become accustomed to relying on government, most Americans rely on government to deal with the problems caused by government’s previous enactments. That only makes matters worse, which causes Americans to rely further on government, etc., etc. etc.

In the case of Obamacare, what we have is a reaction to the high costs of medical services and the presumed failure of markets to provide adequate health care for large chunks of the population. It escapes the notice of most Americans — and is of no interest to most politicians — that the high costs and supposed “market failures” are due to government action: tax subsidies for employer-provided insurance (which results in an artificially high demand for medical services); mandated insurance coverages; barriers to interstate competition in insurance markets; the FDA’s long, death-inducing approval process for new drugs; the AMA’s government-sponsored stranglehold on the training and licensing of doctors; a similar stranglehold on the establishment of health-care facilities; and on and on.This is the real “national emergency,” which today’s majority blithely ignored in its quest to find an extra-constitutional (i.e., precedential) basis for the further expansion of government power.

It is long past time for Americans to declare their independence from the legislative, executive, and judicial tyranny under which we labor for the benefit of politicians, bureaucrats, and freeloaders.

Directly related posts:
Fear of the Free Market — Part I
Fear of the Free Market — Part II
Fear of the Free Market — Part III
Free-Market Healthcare
Social Security Is Unconstitutional
Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?

Posts about government power, its effects, and ways to combat it:
FDR and Fascism
The People’s Romance
Fascism
Fascism with a “Friendly” Face
Secession
Democracy and Liberty
The Interest-Group Paradox
Is Statism Inevitable?
Inventing “Liberalism”
The Price of Government
A New, New Constitution
Zones of Liberty
Fascism and the Future of America
Secession Redux
A New Cold War or Secession?
The Price of Government Redux
The Real Constitution and Civil Disobedience
The Near-Victory of Communism
A Declaration of Independence
The Mega-Depression
Tocqueville’s Prescience
First Principles
As Goes Greece
Accountants of the Soul
Ricardian Equivalence Reconsidered
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
Society and the State
I Want My Country Back
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Bowles-Simpson Report
The Bowles-Simpson Band-Aid
Regime Uncertainty and the Great Recession
Re-Forming the United States
The Stagnation Thesis
Taxing the Rich
More about Taxing the Rich
America’s Financial Crisis Is Now
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Regulation as Wishful Thinking
The Real Multiplier
Vulgar Keynesianism and Capitalism
Why Are Interest Rates So Low?
The Commandeered Economy
Estimating the Rahn Curve: A Sequel
In Defense of the 1%
The Real Multiplier (II)
Lay My (Regulatory) Burden Down
The Burden of Government
Constitutional Confusion
Reclaiming Liberty throughout the Land
Economic Growth Since World War II
More Evidence for the Rahn Curve

I am in mourning for liberty in the United States, which has been killed by today’s ruling by the U.S. Supreme Court. Thus the black band at the top of this blog.

More to come.

UPDATE (09/06/13)

I’ve gone back to red because I’m fighting mad, and plan to stay that way.