June 28, 2012

Is the decision today a win or a loss?

By Is the decision today a win or a loss?

Today for only the third time since the New Deal, five justices of the Supreme Court ruled a law unconstitutional under the commerce clause. And for the first time ever (I think) ruled a law unconstitutional under the spending clause. True, the Mandate remains in place, because the Court shoehorned it into the “taxing” power, promising protections against federal abuse in the future. That leaves the law in place and that’s a shame. But as a matter of constitutional principle, I see today’s decision as a win for those things that the Mandate’s opponents were more concerned about. And in that limited sense, I see today’s decision as a crucial win for the Constitution, even if it’s a loss as far as the Mandate is concerned.

That may not be satisfying, since we are all still forced to buy health insurance, but in this season of Independence Day, I think it’s fitting that we focus on the bigger picture. The commerce clause is not a blank check to control individuals–and the spending clause is not a blank check to control the states. In the long run, that principle will be what matters.

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