Yesterday’s ruling that Obamacare’s individual mandate exceeded Congress’ power under the Commerce Clause showcased the Supreme Court at its intellectual best: the fruits of years of detailed and heated scholarly and judicial debate, intensive briefing and vigorous argument were reflected in the various opinions. Unfortunately, the same cannot be said of the Court’s opinions on the alternative ground – the taxing power – that Chief Justice Roberts and the Court’s four Democratic appointees found to be an alternative basis for the mandate. Critics on the Right have assumed that Roberts is wrong about the taxing power, and the cheerleaders on the Left are simply pocketing the result, but neither the various opinions nor most of the commentary have bothered to explain a theory of what Congress can and cannot constitutionally do through its power to tax.
Continue reading The Supreme Court’s Disappointing Tax Ruling