In the months-long media game of predicting how the Supreme Court would rule on the Affordable Care Act, most pundits speculated on every possible outcome except the one that actually happened: that the Court would uphold the law’s individual mandate by renaming it a tax.
The fact that the tax angle was so outside the realm of anyone’s imagination may be one reason (in addition to the usual, stupid urge to rush to judgment) that both Fox News and CNN slapped egg on their own faces by announcing that the Court had struck down the ACA’s mandate, causing viewers (including President Obama) to believe Obamacare was dead. They were jumping to conclusions based on the first part of the ruling—that the individual mandate violated the Commerce Clause—without waiting to get to the next part: that the law is constitutional under Congress’s authority to tax.
But the “tax, yes/Commerce Clause, no” decision is nothing to necessarily celebrate. Justice Ruth Bader Ginsberg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, wrote separately, arguing against Chief Justice John Roberts’s opinion: “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”
Did, in fact, Roberts lay the groundwork for “gutting the Commerce Clause,” as Tom Scocca writes in Slate?