A distressing number of smart conservatives are still clinging to the argument that Chief Justice John Roberts’ Obamacare decision is a victory for small government conservatism since it somehow “bars further expansion of the size and scope of the federal government.”
This is false.
Roberts did say some nice things about the limits of the Commerce Clause, but by choosing not to strike down the law, Roberts rendered these words worthless. Clark Neily of the Institute for Justice explains why:
Worse, by rewriting Obamacare as a tax, Roberts undermined the political accountability at the heart of our Republic.
Taxes are unpopular. Politicians who want to raise revenue, or regulate behavior through mandates, are desperate to call their legislation anything other than a tax. Roberts’ decision ensures they can do just that. While Obamacare was in the legislative realm, President Obama and the Democrats swore up and down that the mandate was not a tax. If they had to defend it as a tax, it might not have passed. But they didn’t, and it did. And Roberts’ decision let them get away with it. After Roberts’ decision, why would any politician ever honestly label their law as a tax? If anything, Roberts’ has significantly expanded federal power by signaling that the Court will rewrite any law to fit under the taxing power’s general welfare clause.
Finally, as John Yoo points out, the Medicaid rollback is also far less than it seems:
Conservatives who want to defend Roberts need to start identifying some federal policies that Roberts’ decision could be used to reliably strike down.
