Jonathan H. Adler and Nathaniel Stewart write:
Positive Steps, Silver Linings:The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build…. The primary challenge to the individual mandate was an effort to prevent further expansion of Congress’s already-inflated authority under the Commerce Clause. From the New Deal to 1995, Congress exercised its commerce power without meaningful restraint. Only during the later years of the Rehnquist Court did the justices finally say “Enough,” in United States v. Lopez (1995) and Morrison v. United States (2000). Yet even these decisions did not prevent the Court from upholding the federal government’s authority to prohibit simple possession of medical marijuana apart from commercial activity, in Gonzales v. Raich (2005)…
This, I think, profoundly misleads readers as to the rationale of the decisions of the Rehnquist-Roberts court.
Add Bush v. Gore, Eldred, and Citizens United to the mix of Raich, Lopez, and Morrison, and you see a court that has as its principal value not placing outer-limit bounds to already-inflated congressional authority to legislate, but rather a court whose principal aims are (a) the advancement of Republican partisan goals and (b) hippie-punching.
Eldred is, I think, especially brutal: congress's authority to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" is expressly to be exercised to "promote the Progress of Science and useful Arts"--not to enrich the shareholders and managers of the Walt Disney Corporation. Yet because the case was framed to the court as one in which idealistic hippies faced off against pillars of the community, Lessig could get only two votes--with none of the justices in the majority on Lopez or Morrison on his side.
And Adler and Stewart, I think, profoundly fail to grasp the implications of the position--that regulation of "inactivity" is beyond congress's commerce clause power--that they applaud. It means that in a wide variety of cases market failure in individual economic sectors can only be dealt with by sector-wide socialism: public takeover and public provision. It means that softer, more market-friendly, incentive-compatible, efficient, and liberty-friendly regulatory schemes are beyond the federal government's powers.
That's a big one for people who believe--probably wrongly--that market-friendly regulatory schemes are doomed to failure and inferior to market-superseding schemes. And that's a big loss for people like me.