I agree with Nick Gillespie at Reason that there's no credible way to spin the Obamatax decision as a "win" for limited government. Sure, the smackdown of an expansive reading of the Commerce Clause was great but, as Nick puts it:
Yeah, well, when Chief Justice Roberts closed a window, he opened a door.
That open door enables Congress to just compel whatever it wants so long as it's called a tax. And hey, if it's not called a tax, under the Roberts court, judicial restraint means rewriting legislation.
Jonah Goldberg asks why no one seems concerned that Roberts ruling did so much of what wasn't asked of the court (poisoned the well of the Commerce Clause for liberals, removed the court from being an election-year issue, gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively, saved the legitimacy of the court, etc.) and so little of what was asked of the court (determining whether the law, as written, was constitutional).
So while you read Krauthammer and Will's comments favorable to Roberts, be sure to also read Rich Lowry's critique of Roberts' decision. He reminds us that Roberts said he envisioned his role on the court as an umpire:
In his Obamacare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law (as an activist, a partisan, and an altogether rotten human being), Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over. The ref called a foul, but didn’t interrupt the play.
As a result, there’s Obamacare as passed by Congress. Then there’s Obamacare as passed by the Supreme Court.
Obamacare as passed by Congress had a mandate to buy health insurance and a penalty for failing to comply. Obamacare as passed by the Supreme Court has an optional tax for those without health insurance. Obamacare as passed by Congress required states to participate in a massive expansion of Medicaid, or lose all their federal Medicaid funds. Obamacare as passed by the Supreme Court makes state participation in the Medicaid expansion optional.
In pursuit of a judicial modesty deferential to Congress, Roberts usurped its role. Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.
It is not an umpire's job to redraft laws under the guise of judicial restraint. Or as Ramesh Ponnuru ends his critique:
The resulting law may be a better one than Congress wrote. It is not, however, the law that Congress wrote. Roberts may think he has threaded a needle. He has avoided affirming an expansive reading of the Commerce Clause, which conservatives loathe, while refusing to give liberals the ammunition to call him a partisan for dismantling their cherished law. He acted cleverly. He also acted less like a judge than like a politician, and a slippery one.
And the Wall Street Journal's take:
Nancy Pelosi famously said we need to pass ObamaCare to find out what's in it. It turns out we also needed John Roberts to write his appendix.
If this is what a Roberts court means, we're in bigger trouble than we may think.
Photo of umpire via Shutterstock.