Eric Claeys has a very interesting piece (link no longer available) at NRO arguing that Obamacare is unconstitutional and that opponents of Obamacare should continue to make the argument that it is unconstitutional, despite the Supreme Court’s decision.
Here is Eric on the unconstitutionality of Obamacare:
To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.
Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.
Eric makes these points persuasively. His criticism of Chief Justice Roberts as not calling balls and strikes fairly, because he puts his thumb on the scale for one of the sides, is quite clever. Of course, Roberts might respond that the traditional interpretive rule that favors construing statutes to be constitutional is part of the strike zone. But even if one accepts that rule, in my view Roberts goes beyond any legitimate application of this rule.
Eric also argues that limited constitutionalists and other opponents of Obamacare should not accept the Supreme Court’s ruling as deciding the matter and should continue to argue that Obamacare is unconstitutional and therefore should be repealed. I think there is much to be said for Eric’s point here. I am neither a judicial supremacist nor a departmentalist, but I think Abraham Lincoln’s point about Dred Scott is correct:
the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
(emphasis added). Simply because the Supreme Court has said, in a single decision by a 5 to 4 vote, that the mandate is constitutional, does not prevent the Congress and the President from arguing that it is unconstitutional and acting upon that belief. Certainly liberals argued consistently from the time when Bowers v. Hardwick first came down until Lawrence v. Texas was decided that laws against homosexual sodomy were unconstitutional. And that made it more likely that Lawrence was decided the way it was.
Of course, one must be careful about the nature of the argument here. I don’t think it would be legitimate or effective to argue that the Supreme Court decision should be ignored or disobeyed. But it is perfectly legitimate in my view for the political branches to say that they disagree with the Court and to act on that view in a way that does not conflict with the Supreme Court’s judgment. Repealing the Act on the ground that they believe it is unconstitutional would not conflict with the Court’s decision.
One interesting way to think about Claeys’s strategy is to compare it to the one that the Tea Parties have used. The Tea Parties have consistently supported candidates in the Republican primaries that have challenged the Republican establishment and in many cases have prevailed. Ted Cruz’s victory in Texas is only the most recent example. By arguing that Obamacare is unconstitutional and rejecting Roberts’s protection of the federal government, the Tea Parties would start to run against establishment Republican justices. And that might have payoffs if a President Romney has a Supreme Court appointment.
Finally, Eric argues that the Republicans should place in their party platform a plank asserting that Obamacare is unconstitutional. As Jack Balkin has argued, placement in a party platform is an important method of establishing to the nation that a position is a reasonable rather than extreme position. If the Republicans did take that action, it would greatly enhance the credibility of this view.