The Left’s Constitutional Loss

The left won on the policy issue.  ObamaCare still stands (but shall now be rebranded the Obama Healthcare Tax).  But I think the left won the battle but lost the war.

There were three arguments for the individual mandate:

  • commerce power
  • necessary and proper clause
  • taxing power

The first two are constitutional issues.  But, as argued, the third was not.

On the constitutional issues, the left lost big.  The court expressly foreclosed on the left’s attempt to expand the federal government’s power.  The very argument that left alternately ridiculed and ignored for 3 years, in fact, won: the commerce power has real limits and does not allow Congress to compel commerce in order to regulate it.  Don’t underestimate how rare it is for the modern court to limit the commerce power.

In upholding the individual mandate as a tax, the court moved the decision out of the constitutional realm.  It was pretty clear that if the individual mandate could be interpreted as a tax, it was constitutional.  The question was whether, as a matter of interpretation of existing precedent, it could be construed as a tax.  While I think the court got that wrong, it’s not earth shattering as a matter of law.  It literally is something that, if written differently, could have been accomplished and we would never have been able to challenge it.

The left gained nothing in managing to save a policy that they could have had anyway. But in the process, they made constitutional arguments that crashed and burned.  The court has now placed a rare hard limit on the power of Congress to regulate commerce.  Constitutionally, this case was all lose, no win for the left.

But look at the bright side, in the end the Obama Healthcare Tax is just temporary.  It will have to be repealed or rewritten when our debt crisis hits.

2 Responses

  1. Despite my flip answer, I agree with you. It’s just a shame we couldn’t have won the battle and the war.

  2. Yeah, I’m with you.

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