I know it doesn’t look like it at first glance, but it really is. When this legislative atrocity first passed, it was assumed by most people that the Commerce Clause had rendered the Ninth and Tenth Amendments dead letters, per Wickard, and that there really were no limits to federal power. A few lonely voices (particularly Randy Barnett) argued that in fact there were such limits, and that this bill exceeded them. He was scoffed at by many, but those same people were shocked when the court actually took that argument seriously a few months ago. And today, a 5-4 majority of the court, including the Chief Justice, declared that in fact those limits exist and that ObamaCare did indeed transgress them. The bill was allowed to stand only because Justice Roberts declared that it passed constitutional muster under the Congress’s ability to tax (presumably under Article I, Section 8), and that while it had been fraudulently passed (that’s why the president had to lie about it being a tax — he knew that if he admitted it, he would not only lose whatever “moderate” support he had for it, but that he would be going back on his promise not to raise taxes on the middle class), that didn’t make it unconstitutional. Here is a key phrase from his opinion: “It is not our job to protect the people from the consequences of their political choices.”

The nation made a terrible political choice in 2008. It started to fix it in 2010, largely driven by this monstrosity. We have another chance in November to fix it once and for all, with a new president and Senate, and I suspect that’s going to happen. But going forward, future courts will recognize that the Commerce Clause is not a get-out-of-jail-free card for any tyrannical thing that the federal government chooses to do. If we want to continue to rein it in, an amendment of the taxing clause might be useful going forward.

[Update a while later]

People have been asking in comments which house this bill originated in. I thought that it was the House, but apparently the original House bill isn’t the one that finally passed — the one that the court just ruled on originated in the Senate. This opens up an entirely new line of legal attack, because any revenue bill must originate in the House. No one had bothered to make this argument in the past, because no one had considered the mandate a tax. But now that the court has declared it to be so, it could be struck down as unconstitutional because of the process.

[Update a few minutes later]

A shift in the gestalt of constitutional law.

[Early afternoon update]

Obama wins the battle, Roberts wins the war. Seriously, this was a big victory against the Commerce Clause. The court didn’t reverse Wickard, but it established a new precedent that opened up the opportunity for a lot of challenges to existing federal code. The tax thing can be fixed later. I suspect that there will be a lot of support, both in next year’s Congress, and in the states, for a constitutional amendment.

The Supreme Court has declared Barack Obama a liar.

Yes, I’m as shocked as you are.

[Update a few minutes later]

What actually is surprising to me is that Kennedy would have thrown out the entire law, and Roberts saved it.

[Update a few more minutes later]

In reading, it seems like the good news is that Lopez is still alive, and that there really are limits to the Commerce Clause.

Thoughts on the pious self righteousness of the unprincipled and lawless left.