Today, when the Supreme Court upheld the individual mandate as an exercise of the taxing power, Chief Justice Roberts’s political acumen and self‐proclaimed “judicial minimalism” was on full display. During his confirmation hearing, Roberts famously described his view of justices as “umpires” who should “call balls and strikes.” Today, however, Roberts missed a wild pitch.
The Chief Justice thought he was giving something to both sides. By fully endorsing the argument that Congress cannot compel commerce in order to regulate it, and even bringing up the fabled possibility of a “broccoli mandate,” defenders of strict limits on the Commerce Clause were vindicated. But by justifying the individual mandate under the taxing power, the Chief Justice was able to avoid the possible imbroglio that could have resulted if an “activist” Court struck down a major piece of legislation.
But would there have been such a backlash? Unquestionably, law professors and left‐leaning legal pundits would have excoriated the Court for acting politically rather than legally. Unquestionably, there would have been charges that the justices should be impeached, or that President Obama should propose a court‐packing plan similar to the plan proposed by President Franklin D. Roosevelt to chastise a recalcitrant Court that was bold enough to believe the Constitution should be enforced. But would the American people have been angry?
The Affordable Care Act is quite unpopular. Some don’t like it because it doesn’t go far enough and set up a single‐payer. Some don’t like it because it goes too far toward a single‐payer system. There are still others who think the law is a good idea but unconstitutional. Striking down all or part of the Act would not have upset more than half of the American people.
Those same Americans should now make their voices heard and call for Congress to repeal the law. Today, the Court informed us that, unbeknownst to the people, Congress, or even the president, the Affordable Care Act contains a significant tax hike. Congress intentionally hid the true costs of the law from the American people by creatively drafting it so the individual costs—i.e. the money spent by people being compelled to purchase health insurance—were not included in the total cost estimates. This type of legislative legerdemain is not only unconscionable, it is unconstitutional. The Statement and Account Clause requires Congress to regularly publish “receipts and expenditures of public money.”
Perhaps the best thing to come out of the decision is a renewed interest in the Constitution and the fact that the federal government, as it was originally conceived, is strictly limited in its powers. We now know that the Court is not going to enforce those limits, but the voters can.