OK, so the Supreme Court largely upheld Obamacare. Most libertarians are unsurprised. Some more pragmatic libertarians are terribly disappointed by the ruling, but a minority – and I’m one of them – has emphasized the silver lining. Specifically, Roberts and the dissenters all held that the mandate was unconstitutional under the commerce clause, potentially moving commerce clause jurisprudence in a libertarian direction. Yes, Roberts found a loophole to maintain the Supreme Court’s political legitimacy in the eyes of the public, but he said the commerce clause has teeth again. Here’s Randy Barnett (who libertarians should be celebrating as a hero for his leadership on this issue):
In his majority opinion, Chief Justice John Roberts accepted all of our arguments about why the individual insurance mandate exceeded the Commerce Clause: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” he wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”
The majority also accepted our argument about the Necessary and Proper Clause. “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms,” it wrote, “such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”
Finally, for the first time since the New Deal, the Supreme Court invalidated a law because it improperly coerced the states, and thereby exceeded Congress’s spending power.
In other words, Roberts threw some red meat to the social democratic left and slipped in some libertarian jurisprudence. Only a tid-bit, but he signaled that the New Deal-era excise of economic liberty from the constitution could come to an end.
Mr Chait and his partisan allies clearly dislike the way in which Mr Roberts avoided the “crisis” of their collective tantrum, but the great relief that has now washed over them will be enough to keep them from attacking with full force the “bizarre and implausibly narrow reading” of the commerce clause which Mr Roberts just embedded more firmly in constitutional law.
Just think how the social democratic left is reacting. They’re not enraged, just a little worried, because Roberts gave them a hedon bath to cool them off.
Now libertarians are used to nay-saying. It’s how we cope with the fact that we consistently fail to affect policy. Let’s face it. We’re losers. And so when government does anything, our tendency is to complain, wail and predict disaster.
But I’m not having any of that depressing crap today.
Remember just how bad commerce clause legislation has been. As most of you know, from the late 19th century until 1937, commerce clause jurisprudence protected an extensive regime of economic liberty. But things took a sharply statist turn thereafter. Since then, the Supreme Court has basically abandoned the protection of economic liberty. In other words, things suck for economic freedom from a constitutional perspective.
In 1995, in the Lopez decision, Clarence Thomas indicated in his concurrence that the pre-New Deal commerce clause jurisprudence should stand (basically). He was lambasted as a nut by the legal establishment. But yesterday five Supreme Court justices, including the Chief Justice, clearly and forcefully said that the ACA cannot be justified on commerce clause grounds. Here we have it in print, and set as precedent, that the commerce clause doesn’t permit the Congress have its complete way with us economically. Had the mandate imposed genuine legal penalties, like jail time, it would have been ruled unconstitutional.
I know this is only a glimmer of hope, at least for today. But I’m going to ask the libertarian movement to take a different attitude. Here’s why.
Roberts and the conservatives have effectively said to the friends of economic freedom that commerce clause jurisprudence is now in open dispute. No longer will arguments for a narrow reading of the commerce clause be openly scoffed at. An entire new legal world is open to us like it wasn’t before. It is now within the realm of feasible political possibility to reestablish thick economic liberties as constitutional rights, which all libertarians think would be a massive move towards justice.
The Supreme Court didn’t do that job for us. But it did say that it might play along if we take the lead. A major branch of the U.S. government has effectively opened the door for a much bolder and hopeful libertarian movement. Libertarian legal groups like the Institute for Justice can start to search for ways to allow the court to quietly do what most of them seem open to doing. Libertarian academics can defend market democratic institutions with much more daring and legitimacy than they could have two days ago. And the libertarian movement has been given an opportunity to grow in influence and power.
If you libertarians are down in the dumps about the decision, if you’re angry with other libertarians looking for an upside, get over yourself. How odd for you to expect the Supreme Court to hand you your rights on a silver platter. Join with those of us who love freedom enough to hope that a new era of economic law could be ours if we take the lead. We have to fight for justice, to elevate economic liberty to the status of civil, religious and political freedom. That fight has just gotten easier.
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