National Review - A Hollow Victory for Obamacare

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By Sen. Mike Lee

Yesterday, the Supreme Court upheld the Affordable Care Act (ACA). But I believe it will ultimately prove to be a hollow and short-lived victory for the health-care law.

The Supreme Court was able to find the individual mandate constitutional only through a series of extraordinary logical gymnastics, the conclusion of which was that the mandate is actually a tax. But, of course, members of Congress did not vote to pass the ACA as a tax. Nor did the American people understand it to be a tax. Indeed, President Obama himself flatly stated that the individual mandate "is absolutely not a tax increase" -- that "nobody" considers it a tax.

As Justice Kennedy noted in his dissent, "imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry." There is simply no way that the ACA would have become law had the American public and their representatives understood the mandate as a tax.

As a result, I believe the practical effect of the decision will be short-lived. As numerous public-opinion polls confirm, the majority of citizens already oppose the individual mandate. As more Americans come to understand the individual mandate as a middle-class tax hike, it will only become more unpopular. According to the non-partisan Congressional Budget Office, at least 75 percent of the penalties or "taxes" imposed by the individual mandate will fall on Americans who make less than $250,000. In making choices at the ballot box this November, I believe, the American people simply will not stand for the ACA to remain the law of the land.

Today's decision may ultimately be regarded less as a victory for the Affordable Care Act and instead as an important recognition and validation of the freedoms protected by our constitutional structure. The Court's decision today upheld the individual mandate as a tax, but it also validated fundamental principles of limited government and federalism.
A majority of the justices rightfully concluded that Congress had exceeded its regulatory authority under the Commerce Clause by attempting to impose the individual mandate as a government directive. As Chief Justice Roberts's opinion explained, "The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . That is not the country the Framers of our Constitution envisioned."

In so holding, the majority opinion expressly embraced the limiting implications of the distinction between activity and inactivity, put forward by critics of the ACA. The Court noted that, although its Commerce Clause jurisprudence throughout much of the last century had been notoriously expansive, even at its most expansive (such as in cases like Wickard v. Filburn), it had always limited Congress to regulating preexisting activity. The ACA, by contrast, tried to regulate inactivity. The Court refused to countenance such limitless congressional power.

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