The Upside of the ObamaCare "Win"

Dov Fischer writes that anyone with legal expertise knows who really won, and it wasn't the left:

Until Thursday's decision, for more than 70 years, virtually every leading Supreme Court decision on the reach of the Commerce Clause has sided with federal intrusion. Although there have been isolated exceptions -- e.g., United States v. Lopez, 514 U.S. 549 (1995) (limiting federal regulation regarding carrying guns near schools) and United States v. Morrison, 529 U.S. 598 (2000) (limiting power of the federal government to expand rights of women to sue attackers) -- the leading cases on the Commerce Clause, often relying on precedents like Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress could prevent a person from growing wheat for his own personal consumption on his own private land), have held that the federal government can force Americans to do or not do, to buy or not buy, virtually anything if couched as an act to facilitate or regulate interstate commerce. Wickard "always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence." (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, at 3.)

It was this very line of Wickard-consistent Supreme Court opinions that served as the basis for a long line of lower federal courts, both district courts and federal appeals courts, choosing to uphold ObamaCare as that bill was tested through the judiciary. However, with Chief Justice Roberts almost surreptitiously joining with Justices Scalia, Thomas, Alito, and Kennedy in ruling that ObamaCare is barred by the federal Commerce Clause, a new era has begun in Commerce Clause jurisprudence.

Every liberal citation to Wickard will be countered by a conservative citing to Chief Justice Roberts's opinion: "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . . The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. The Federal Government does not have the power to order people to buy health insurance. . . . The Federal Government does have the power to impose a tax on those without health insurance." (National Federation of Independent Business v. Sebelius, Slip op. at 3, 41-42, 44)

There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want.

Charles Krauthammer, too, discerns something, if not exactly positive then not, strictly speaking, negative in yesterday's bombshell:

Obamacare is now essentially upheld. There's only one way it can be overturned. The same way it was passed--elect a new president and a new congress. That's undoubtedly what [SCOTUS Chief Justice John] Roberts is saying: Your job, not mine. I won't make it easy for you.

Update: In parsing the decision for Contentions, John Steele Gordon observes that an ObamaCare tax is innovative, but nutty:

Never before that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you don’t buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

Don't give 'em any ideas, John.