Wow. Will Wilkinson wrote this before the Supreme Court’s ruling on the health care insurance mandate was released and it pretty much nails exactly what happened. I said at the outset that I wouldn’t be shocked if they upheld it under the taxing power, but I certainly didn’t come this close:
The court will uphold the constitutionality of the individual mandate. Roberts, writing for the majority, will offer a hyper-causuistical decision that discovers in standing commerce clause precedent principled grounds for ruling in an insurance mandate while ruling out congress’ power to mandate purchase of any goods and services that don’t begin with an “i” and end with an “e”, and aren’t ice or iodine. To brighten the dashed hopes of conservatives, the “Why there can never be a broccoli mandate” section of Roberts’ decision will on the whole narrow Congress’ commerce-clause regulatory powers. However, in their very great relief, and schadenfreude over bitter conservative disappointment, liberals will largely miss the minor revolution contained in Roberts’ sly scholasticism.
Spot on. The commerce clause analysis really does set the stage for greater limits on congressional authority in future cases, despite the outcome in this one.