July 2, 2012 12:20PM

An ObamaCare Silver Lining?

Today POLITICO Arena asks:

Was the health care ruling actually a long-term victory for conservative jurisprudence?

My response:

It will take some time to fully digest the Court's massive and often opaque split decision on ObamaCare, but whether the ruling will eventually lead to a victory for conservative jurisprudence will now be in the hands of the voters. If the reaction to this decision brings the majority of citizens who've consistently opposed ObamaCare to the polls, not only might ObamaCare be repealed, but the Court itself may eventually change in the direction the dissent marked out, and that would be good.

To be sure, some have suggested that this decision is not as bad as it seemed at first, but here are just a few responses to that contention: (1) the Commerce Clause "victory" is extremely limited; Congress cannot compel people to engage in commerce so it can then regulate that commerce, but this is the first time Congress has ever tried such a thing, so it's not an everyday affair; (2) the vast post-New Deal regulatory power that Congress has practiced remains untouched by this decision; (3) a good case can be made that this Commerce Clause "victory" will be read as dicta and hence will not be binding in future cases; and finally, (4) Congress can now do the same thing under its taxing power, so as a practical matter there was no change.

Yes, that last point puts the matter "on budget," and that's no small matter, politically. But it will take a political reaction and then a change on the Court before this decision can be read, doubtless by historians, as having precipitated a victory, not so much for "conservative jurisprudence," which is not of a piece, but for the Constitution.