But worst of all, Chief Justice Roberts’s treatment of the individual mandate as a tax blows a hole in the Commerce Clause. To see this clearly, consider the much-discussed hypothetical about eating broccoli — which I am happy to say is only a hypothetical at my own dinner table. At oral argument, Justice Scalia had argued that the government’s claim that it could force people to buy Health Insurance meant that it could also force them to eat broccoli. Roberts agreed that a federal law forcing Americans to eat their vegetables must be unconstitutional. But, as the dissent argued, Roberts’s decision would allow Congress to pass a law that everyone must eat broccoli or pay a tax penalty. The federal government would exercise the unlimited power that the Framers did not want it to have, just so long as they re-characterize their regulations as tax penalties.
One last moment of cheer for conservatives apparently came with the majority’s finding that ObamaCare’s expansion of Medicaid violated state sovereignty. Congress threatens to cut off all of a state’s Medicaid funding if it refuses to expand coverage as dictated by the federal government. Federal Medicaid grants average about 22 percent of all state expenditures. Seven justices agreed that threatening to cut off that much federal funding gave states little choice but to accept federal terms. Conservatives have long dreamed of placing limits on the spending power, through which the federal government extends its grasp into state areas such as the environment, education, housing and family matters in ways that the Framers would never have intended. Perhaps Sebelius will set the groundwork for expanded judicial scrutiny, or it could represent an outlier due to the large amount of funds at stake.
The conservatives still could have leveraged this small gain into overall victory. The court could have struck down the whole law because of the unconstitutionality of the Medicaid expansion. But Roberts would have none of it. Even though Congress failed to include a provision severing any unconstitutional provisions, Roberts and the four liberals agreed that the rest of Obamacare would remain in force. To avoid the natural conclusion that the whole law should be struck down because it created a complicated, interlocking regulatory scheme, the majority had to basically rewrite the law. As the dissenters wryly observed: “The Court today decides to save a statute Congress did not write.”
While a disappointing loss for both the economy and the Constitution, Sebelius contains an important lesson for conservatives. They cannot rely on the federal courts to save them from the ever-expanding liberal welfare state. Placing all of their eggs in the judicial basket led conservatives to forget the most important forum for making their case: the political process. The only way left to defeat Obamacare is for conservatives to win not just the White House, but also the House and Senate this November. The Supreme Court is not the place to make policy judgments. “Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them,” the majority declared. “It is not our job to protect the people from the consequences of their political choices.” That is one thing that Chief Justice Roberts got right this week.
John Yoo is a law professor at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A Bush Justice Department official, he is the author most recently of Taming Globalization (Oxford U. Press 2012).