Big Government Is Reined In

By Michael Barone
Monday, July 02, 2012

The Supreme Court’s 5–4 decision upholding the Obama administration’s health-care legislation was a victory for the president, his administration, and his party. Their most ambitious legislative achievement has not been nullified, and they are not left in obvious disarray.

But it is only a partial victory and in some ways not a victory at all, both in the short run electorally and in the long run in terms of the constitutional order.

Politically, Obamacare, as its critics call it, remains highly unpopular. It’s possible that the court decision will boost its support, but unlikely.

Most voters want this law repealed. Mitt Romney and the Republicans want to repeal it. Barack Obama and the Democrats want to preserve it. It’s not a winning issue for the incumbent.

Constitutionally, many conservatives are unhappy that Chief Justice Roberts and the four justices generally considered liberal voted to uphold the mandate to buy health insurance as a tax, which Congress is clearly empowered to levy.

But the fact remains that a majority of five justices, including Roberts, also declared that Congress’s power to regulate commerce does not authorize a mandate to buy a commercial product. This will tend to bar further expansion of the size and scope of the federal government.

Moreover, the Constitution’s limits on congressional power have now become, for the first time in seven decades, a political issue. They’re likely to remain one for years to come.

This would not have been true had not the constitutional case against the mandate been advanced by Washington lawyer David Rivkin, Georgetown law professor Randy Barnett, and many others.

They did not quite prevail in the Supreme Court, but they changed not only the legal but also the political debate in a way almost no one anticipated three years ago.

Unhappy conservatives grumble that Congress can get around the declaration that a mandate is beyond Congress’s enumerated powers by labeling it a tax — or just by relying on five justices’ declaring it one.

But there’s usually a political price to pay for increasing taxes. That’s why Barack Obama swore up and down that the mandate was not a tax. It’s why Democratic congressional leaders did not call it one.

Roberts’s decision undercuts such arguments, now and in the future. Members of Congress supporting such legislation will be held responsible, this year and for years to come, for increasing taxes.

And the Constitution’s provision that tax bills must originate in the House of Representatives means that the party controlling the House can effectively block such measures. That will be an argument for Republican congressional candidates for the indefinite future.

It should not be forgotten that the Supreme Court did overturn part of the Obamacare legislation, the provision allowing the federal government to cut off states from all Medicaid funding if they refuse to vastly expand Medicaid eligibility as the legislation requires.

Here, another novel legal argument, advanced by Vanderbilt law professor (and my law-school classmate) James Blumstein, found favor with a majority of justices. The idea is that Congress can’t use the leverage of partial federal funding to force the states to increase the size and scope of government.

This seems like a principle that could work powerfully against big-government policies. Medicaid has been vastly expanded over the years in this manner. Now the Court seems to be saying that that game is over.

The court’s decision elicited sighs of relief from the White House. The president’s entire administration is not in shambles.

But the basic assumptions that he brought to office have proven unwarranted. Obama followed the New Deal historians in portraying history as a story of progress from minimal government to big government and in arguing that economic distress would make Americans more supportive of big-government policies.

The unpopularity of Obamacare and the stimulus package have proven the latter assumption wrong. Most Americans are skeptical about the supposedly guaranteed benefits of centralized big-government programs.

And history does not move in one direction toward big government, even if it did from 1929 to 1945. Mercantilism was replaced by free trade in the 19th century, New Deal regulation by deregulation in the 1970s and 1980s.

The Supreme Court’s decision, while upholding Obamacare, tilts the legal and political playing field away from big government more than anyone anticipated three years ago, and probably for years to come.