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July 06, 2012

Good Analysis

Randy Barnett, author of the Bill of Federalism and a prime mover in the challenges to ObamaCare (he represented the NFIB in NFIB v. Sebelius), simplifies and clarifies the Roberts ruling:

Roberts' decision made bad law in two respects. First, he claimed the power to rewrite a law by giving it a "saving construction" to uphold it, after he admitted that this was not the best reading of what the law actually said. Second, he allowed that Congress may impose an unprecedented tax on inactivity, provided that it is low enough to preserve the tax payer's "choice" to obey or pay. Both of these maneuvers made constitutional law worse, even if they did save this law in hope of avoiding political attacks on the court.

But the deal that Roberts gave constitutional conservatives was to make constitutional law better in more important ways. He agreed with the four conservative justices that the powers of Congress were limited by Article I of the Constitution; that the Supreme Court would enforce these limits; that the individual insurance mandate exceeded the powers of Congress under the Commerce Clause; that compulsion to engage in commerce was "improper" under the Necessary and Proper Clause; and that Congress could not use its spending power to coerce states into vastly expanding the Medicaid program by withholding existing funding. These are all rulings that 99 percent of law professors had argued against.

I do not praise Chief Justice Roberts for making this political deal. But neither do I want to throw away all that we won because I don't like what we lost.

And conservatives and libertarians need to stop agreeing with progressives that his ruling gave Congress a green light to impose economic mandates under its tax power. It didn't.

Herr Barnett posts a more detailed analysis here. It's well worth your time.

Several years ago, I read his "Restoring the Lost Constitution: The Presumption of Liberty". Not sure I had the right background to fully evaluate his arguments, but it was a thought provoking read. I should read it again.

Posted by Cassandra at July 6, 2012 02:52 PM

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If the SCt says a law is constitutional but only if it's given a reading that "isn't the best reading," is the "best" reading still constitutional?

Posted by: Julio at July 7, 2012 06:34 PM

I would think not (otherwise there's no need to give it an alternate reading).

Posted by: Cass at July 9, 2012 08:15 AM

My legal mind is nil, background slightly less so.

The question is, then, that why should the law be so complicated? Is it a tax or not? If so, does it violate our right to life, liberty and the persuit of happiness by imposing a mandate?

Posted by: Carolyn at July 9, 2012 11:48 AM