Posted by Brad @ 8:18 pm on June 27th 2012

The One Line of Analysis I’ve Yet to Hear In SCOTUS Predications Regarding ObamaCare

The narrative in the Supreme Court decision on Obamacare, imminent tomorrow, is that there is one side that is just itching for a ruling against the individual mandate on the grounds that it’s bad for freedom (in just a soundbyte sense, which is to say it’s something that liberals like) but mostly that fuck Obama. And, on the other side, the basic assumption that striking down a law that is Good is inherently unjust, but mostly will be evidence that Republicans are CRAZY AND HAVE STACKED THE SUPREME COURT WITH POLITICIANS IN ROBES!!!!

The unspoken assumption in all of this will be that laws you think are good on their merits must also be constitutional on their merits, and laws that you think are bad on their merits must also be unconstitutional on their merits. The one, somehow, inherently follows the other, such that I have seen almost no people who support Obamacare and its basic assumptions about the goodness of its actions, who also believe it is unconstitutional, nor have I seen anybody who thinks the law is good on its merits but unconstitutional according to the plain meaning of it. The idea that a law may be a basically sane and well-meaning approach to a real societal problem that will probably work pretty well, but is also unconstitutional and their are more fundamental reasons to call that out in spite of its good intentions, appears not to have occurred to anybody.

So let me just say it out loud. I do not believe that this court is necessarily more partisan than ANY COURT WE HAVE EVER SEEN or whatever, although their are certainly partisans on it. And I do not believe, necessarily, that whatever decision they reach will be inherently tied to partisan considerations, although that would certainly have occurred to said partisans.

Really though, this case should not be about whether you agree with Obamacare or not, or support Obama or not. It should be about whether the federal government has the authority, under the Commerce Clause, to compel action in private economic decisions. My very construction of that question belies my own opinion on it, but that’s the gist of it. And that’s going to be the real lasting legacy of this decision – whether there is any limit to the ability of the federal government to regulate behavior, if they believe in the cause enough, and what precedents that sets, one way or the other.

One would think this would be the forefront on any conversation on the matter. It won’t be, tomorrow, but keep it in mind.


  1. Something wrong with your second sentence in para 2. I think it is meant to say: no one is saying law good but unconstitutional, nor is anyone saying law bad but constitutional. Right? But your sentence repeats the first half only.. so am I missing something?

    Comment by Jack — 6/27/2012 @ 8:48 pm

  2. I predict that Facebook will become the least pleasant place in the universe tomorrow.

    By which I mean, even more so than usual.

    Comment by Rojas — 6/27/2012 @ 10:56 pm

  3. Ah. I forgot the “un” in front of the second constitutional. Should read:

    “The unspoken assumption in all of this will be that laws you think are good on their merits must also be constitutional on their merits, and laws that you think are bad on their merits must also be unconstitutional on their merits.”

    The basic gist is the “goodness” of a law doesn’t necessarily (or even usually) speak to its constitutionality, which is a point that appears to me to have been entirely lost in the American political conversation, but in particular here. And, I might add, the impact of our social fabric and legal and governmental impact by molding those two things is substantial. Likewise, the main legacy of this ruling and those like it extend far beyond the political cycle of Socialist Obama versus Crazy Republicans, which, no matter HOW strongly you believe the next election matters, is a mere pittance compared to the possible precedents in play here. Even in terms of the impact on health care in America, there are already fairly clearly defined means of advancing either side’s objectives here (be it universal coverage or market-based solutions) that don’t entail imprinting mechanisms like mandates or precedents entailing the government’s right to regulate all economic activity, or nonactivity, of any kind.

    Comment by Brad — 6/28/2012 @ 9:28 am

  4. Sandefur covered something similar, in interesting detail a couple of years back.

    Comment by Jack — 6/28/2012 @ 11:20 am

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