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Conservatives’ Consolation Prize

Postmillennialism —  2 Comments

George Will — Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr. has served this cause.

The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.

The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:

“The power to regulate commerce presupposes the existence of commercial activity to be regulated. …. 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. … Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution … the limitation of congressional authority is not solely a matter of legislative grace.”

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2 responses to Conservatives’ Consolation Prize

  1. Roberts could have limited the Commerce Clause without turning a penalty into a tax. It clearly said in the legislation it was a penalty, which Congress can’t do. And Obama and other Dems all said it wasn’t a tax. Based on that, it should have been deemed unconstitutional.

  2. Mark Brickey August 1, 2012 at 6:30

    Judge Roberts has been threatened & coerced into this decision. Also, we need to remember that Obama has 2 cronies on the SCOTUS. Sotomayor & Kagin. Kagin should have recused herself or been forced to. Remember? SHE helped write & shove this through Congress. She KNEW what was in this monster. She’s also almost for sure the “leak” that kept Obama & gang informed of progress by SCOTUS debates.
    There is no way, I believe, that Roberts would have made this decision on his own…..

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