One of my favorite blogfriends sent me a link to John Yoo’s article excoriating Justice Robert’s decision in the harshest terms. Yoo states plainly that the decision spells the end of individualism in America, since it expands the government’s taxing power to encompass everything. Those who seek a silver lining (or ponies or lemonade) are deluding themselves, Yoo argues:
All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.
Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.
Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.
Yoo is correct about the decision’s effect, and new evidence showing that Roberts was motivated more by politics than constitutionalism. Nevertheless, this war is not over as long as we don’t surrender.
Rightly or wrongly, the bottom line is that the Supreme Court will not pull conservative’s political chestnuts out of the fire. America is stuck with the government the majority elects. Conservatives sat on their collective backsides for 40 years as liberals took over one institution after another. They sowed, they reap. We weep.
John Will is a Brazilian Jujitsu martial artist who makes an interesting point when he teaches, one that sank into my brain and that still surfaces periodically when I get overwhelmed by things: we tend to get into trouble because we’re unaware that we’re heading into trouble. Few of us race to disaster. Instead, we head that way step by unwitting step. We can pull back at any time, but we don’t. If we were at the water’s edge, you would see that few of us jump into the deep end. Instead, we just keep walking, unaware that the water is rising, right up until it hits our mouth. That’s bad. What’s really bad, though, is that we think we can take a giant leap and suddenly be on dry land. That’s not what happens. Sadly, too many who assume that a giant leap is all there is, end up panicking when the leap fails — and there they are, stranded and helpless.
Will’s point is that, whether in jujitsu or life, one cannot instantly and completely pivot away from a slowly developing disaster. If it took 48 steps to get you in up to your nose, it might take 49 to get you back to dry land. In jujitsu, that means a victory might be freeing your elbow or your knee, so that you can go on to liberate the next body part from your opponent’s grip. In politics, a start might be holding the House and taking the White House. Not as good as all three political branches, but better than just one.
Here’s the deal: We’ve had decades to get ourselves into this fix. We — that is, we conservatives — will not reclaim the country in November. Nevertheless, this election, and the next election, and the election after that, each represents one of the small steps we must take so that the Supreme Court ruling is a tocsin and not a death knell.