No, Roberts' Ruling Didn't Doom Liberalism

| Thu Jun. 28, 2012 6:20 PM EDT

There's a thread of early analysis of the Supreme Court's ruling on the Affordable Care Act that says that Justice John Roberts may have rescued the Affordable Care Act but doomed future liberal projects. This counterintuitive argument stems from Roberts' analysis of the Commerce Clause, the section of the Constitution that authorizes most of the federal government's attempts to regulate the economy.

In the court battle over Obamacare, the government had argued that the individual mandate—the part of the health care law that requires Americans to purchase health insurance or pay a fine—was constitutional because the Commerce Clause gives Congress the authority to regulate interstate commerce. The government's lawyers said that without the mandate, the health care law wouldn't work, and because not having health insurance substantially affects the health insurance market (i.e., it affects interstate commerce), it was okay to fine people for not buying insurance. Conservatives argued that the mandate was not really regulating commerce, but forcing people to engage in it. They claimed the Commerce Clause allowed Congress to regulate "activity" but not "inactivity"—a distinction found nowhere in the Constitution itself.

Chief Justice John Roberts, despite voting to uphold the individual mandate as a tax, agreed with the conservative argument. As a result, some liberals are concerned—and some conservatives and libertarians are encouraged—by Roberts' reasoning, despite the fact that Obamacare largely survived.

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