…to the Obamacare decision. I’m not a lawyer, so you smart lawyerly types can argue about it. He writes:
The Constitution lays the basic groundwork for Congressional power over the nation in Article I. In Art. I, § 8, the Taxing and Spending clause empowers Congress to “lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” A few paragraphs down in Art. I § 8, the Commerce clause allows Congress to “regulate commerce . . . among the several states.” So Congress can (1) Tax, (2) Spend for “general Welfare” and (3) regulate interstate commerce.
In the 1942 case of Wickard v. Filburn, a farmer named Roscoe Filburn was mad about a ridiculous New Deal regulation meant as a price support for wheat that told him how much wheat he could grow on his own farm and feed his own pigs. The Court found that the Commerce Clause let the feds tell Roscoe how to run his farm. Sure, they reasoned, Roscoe’s farm didn’t cross state lines or anything. But *in the aggregate*, if every farmer did what Roscoe was doing, the national, interstate wheat market would be affected.
Wickard v. Filburn is the basis on which the entire post-New Deal edifice of federal Big Gummint was built. No matter what you did, some liberal lawyer would argue that your behavior had a “nexus” with interstate commerce. (In Gonzalez v. Raich, e.g., a California woman growing medical marijuana on her windowsill was told she was acting in interstate drug commerce, so the feds could come after her despite California’s medical marijuana law. Clarence Thomas, a principled state’ rights strict constructionist, voted against that. But Antonin Scalia, a good pro-lifer but otherwise just a G.O.P. hack, was so eager to stick it to some California hippie that he sided with Big Gummint in Gonzalez v. Raich to do so.)
So that’s the background. The last piece is something called the “doctrine of Constitutional avoidance.” It means that given the choice between reading a vague statute as unconstitutional, or reading it as constitutional, a court should defer to Congress and pick the latter reading.
What Roberts did today was apply that doctrine. He said that Obamacare was (1) vaguely written (2) unconstitutional as an exercise of the Commerce power (3) constitutional if the payment to the IRS for not having insurance is read as a tax, since the Taxing power is broader than the Commerce power.
This is a big deal. It means that the next time somebody tries to use the Commerce Clause to expand Big Gummint (as liberals have been from 1942 until now, with only two major lost cases along the way I won’t bore you with–Lopez and Morrison), it will be a lot harder. In the war against Big Gummint, that may be more important than winning today’s battle.
As for Chief Justice Marshall, the war he was in was to establish the right of the Supreme Court (full of Federalist appointees from the Washington and Adams administrations) to judicial review of laws to see if they violated the Constitution. Jeffersonian Democrats argued that the Court was only there as an appeals court in regular cases, not to review laws. Marshall handed Jefferson a victory in a small-time case about leftover D.C. municipal patronage jobs from the Adams Admin. that Secy. of State Madison wanted to give to Democrats instead of leaving for Adams’ last minute Federalist appointees, but used the case to establish the right of the Court to review actions like Madison’s. In other words, Jefferson got the bad news that the Court could review his Admin.’s actions for constitutionality, but the good news that in this penny-ante case, Madison’s actions were constitutional. Here, Obamacare is constitutional as a tax, but the argument of liberals like Justice Ginsburg that the government CAN use the commerce clause to make you buy broccoli, not grow wheat, not grow weed, or whatever, just got a lot more difficult.
Lizzie Scalia is rounding up various reactions from the Leftosphere and what is striking is how many of them are basically saying “Obama won the battle, but Roberts won the war”. And they don’t mean that in a happy way.