Some thoughts about yesterday’s Supreme Court decision upholding the Affordable Care Act (NFIB v. Sebelius):
1) From a jurisprudential viewpoint, the decision could not have been worse. Not only did the Court establish the principle that individuals can be forced under penalty of law to pay for the services of a private business (and the tax for non-purchase, contra Justice Roberts is clearly a penalty) but a majority of the Court also indicated that it would strike down future regulatory legislation on Commerce Clause and Necessary and Proper Clause grounds. Under the Chief Justice’s “broccoli” reasoning accepted by a Court majority, any regulation requiring positive action, and penalizing inactivity, violates the Commerce Clause. Think of the areas of regulation, from environmental cleanup to child nutrition, to which this precedent could be applied! The Court also apparently established that the states can reject federal mandates on the ground of unanticipated cost increases, thereby dealing a huge blow to future federal efforts at comprehensive national legislation (which commonly operates through state governments). Had the Court merely struck down the ACA on Commerce Clause grounds, the impact would not have been so broad. A sly devil, Justice Roberts is!
2) The long-term jurisprudential harm of this decision has been hidden to many liberal commentators who have been exulting at the real, albeit limited benefits that the Act itself will bring about (no disqualification because of pre-existing condition, children under age 27 can continue on their parents’ insurance, etc.). The Court, in effect, used the ACA to operate under a smokescreen.
3) Bush v. Gore, Citizens United, and yesterday’s decision form a sort of grotesque trilogy, which together will inflict a possible death blow to our representative democracy. Of the three decisions, the impact of yesterday’s is the most subtle but perhaps the most devastating. The Court went beyond the Citizens United ruling that corporations are the legal equal of flesh and blood individuals. Yesterday, the Court held that flesh and blood individuals exist in a state of servitude to the corporations.
4) In all of the above decisions, the Court used what one commentator on FDL yesterday called a “pretzel logic.” But the goal of the Court is no longer legal analysis, it is ruthless politics.
5) With yesterday’s decision, the “liberal” wing of the Court blew itself up. 4 of the 5 votes to uphold the ACA came from the “liberals.”
6) We are back to the days of Dred Scott.