The American Spectator

There has been some counterintuitive analysis suggesting John Roberts is an evil genius and today’s health care ruling is a hidden conservative victory. Here’s one example from Jay Cost on the right:

First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power….

Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn’t think we could have one without the other, but now maybe we can.

Here’s another example from Ezra Klein on the left:

But by voting with the conservatives on every major legal question before the court, [Roberts] nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.

I’m as pleased as anybody about the commerce clause jurisprudence here, but there are two obvious problems with this argument. First, you have to find an actual expansion of government that will be prevented by the commerce clause precedent but is not permissible under Congress’ taxing power. Maybe such an expansion will be proposed, and certainly the taxing power has a much bigger political downside than regulating imaginary interstate commerce. But right now, that’s a highly abstract proposition in exchange for upholding one big, very real expansion of government.

Secondly, Roberts had an undeniable chance to strike down the mandate and even the whole Affordable Care Act. All he had to do was vote with Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sam Alito. Instead he chose to rewrite an existing constitutionally problematic statute in a way that allowed it to narrowly pass constitutional muster. That’s not judicial restraint. Moreover, if Congress and the president can assert an unconstitutional power to claim something isn’t a tax, and then have it re-labeled a tax by the Supreme Court, that undermines the political limits on the taxing power.

Until you can find a real-world expansion of government power worse than Obamacare that this decision would enjoin, it seems that Roberts’ conservative defenders are being too clever by four-fifths.