The Supreme Court of the United States has just ruled on a matter of great public controversy. Conservatives, and others committed to judicial restraint, are in an uproar: one of their own has betrayed them.

A sitting justice was the swing vote in a decision that radically and expansively altered the relationship between citizens and their constitutional liberties.

We had been assured by elected officials repeatedly during the soon-to-be justice’s Senate confirmation hearings that he was a conservative “home run.”

At the time of his appointment, then-President Bush had assured the American people:

[The Supreme Court nominee’s] opinions reflect a keen intellect as well as wide balance between the theoretical and practical aspects of the law. [He] is committed to interpreting, not making, the law. ... I have selected a person who will interpret the Constitution and, in my view, not legislate from the federal bench.

Indeed, for the first couple of years after his appointment was confirmed and he was seated on the court, the candidate sided fairly consistently with the bench’s originalist right wing. What happened?

You might think I’m referring to yesterday’s headlines -- i.e., the opinion delivered by Chief Justice John Roberts on behalf of the court in National Federation of Independent Business v. Sebelius.

I am not.

I’m referring to a very different justice and a very different case, exactly two decades ago: George H.W. Bush-appointee David Souter, the unexpectedly leftist justice who co-authored the high court’s opinion in 1992’s Planned Parenthood v. Casey. Souter joined a slim majority in upholding the central doctrine of Roe v. Wade (1973), wherein the Supreme Court for the first time since the American founding redefined abortion-on-demand as a constitutional right, where hitherto it had been regarded as a social matter of strictly state-level concern.

Nihil novi sub sole.

Before exploring the implications of yesterday’s ruling on the Patient Protection and Affordable Care Act (PPACA), or Obamacare, we’d do well to review what the court did and didn’t do.

What the Court Did: Individual Mandate? Constitutional. Medicaid Expansion? Unconstitutional.

By far the most controversial provision of PPACA is the individual insurance mandate. Under the law, most Americans must maintain “minimum essential” health insurance. Beginning in 2014, those who do not comply with this mandate must make a “shared responsibility payment” to the federal government.

By 2016, this annual payment, which the Act explicitly calls a “penalty,” would be “2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization).”

The Obama administration argued that compelling individuals to purchase health insurance is a valid exercise of Congress’s power to “regulate commerce ... among the several States” under Article I, Section 8 of the United States Constitution. The court held that this was not a valid exercise at all: there is a clear difference between regulating already-existing commercial activity and compelling it into existence.

The administration argued that even if the individual mandate wasn’t a valid exercise of the commerce clause, it was permissible under Congress’s power to “lay and collect taxes ... for the ... general welfare of the United States,” authorized by the same section of the Constitution. The court agreed, finding that, even though PPACA itself never refers to the “shared responsibility payment” as a tax, that is what it effectively is.

The court would look beyond legislative nomenclature and determine whether what Congress expressly called a “penalty” was not a penalty at all but merely a special tax for the uninsured. Finding it so, the court declared the individual mandate constitutional.

Finally, the court considered PPACA’s “Medicaid expansion,” the Act’s stipulation that a state lose all of its Medicaid funding if does not comply with the law’s directive to expand coverage from particular classes of vulnerable persons (those covered under Medicaid today: pregnant women, children, needy families, the blind, the elderly, and the disabled) to all non-elderly persons with income below 133 percent of the poverty level.

The court held that this new requirement amounted to a kind of contract violation between federal and state governments: When the states first agreed to participate in the Medicaid program, they could not have anticipated that it would transform so dramatically; the financial burden of such a transformation on state budgets amounts to coercing states’ participation in a new Medicaid program, and this is unconstitutional.

What the Court Didn’t Do: Pronounce on the Entire Law

It’s important to keep in mind that what was before the court was not the constitutionality of all 900 pages of PPACA, but only the two aforementioned provisions. To be sure, if either of these two provisions were declared unconstitutional (as the Medicaid expansion indeed was), it would raise the question of severability -- i.e., whether the offending section could be isolated from the statute as a whole, or whether the entire law would be rendered unconstitutional.

“Severablity” is a very controversial legal doctrine; the federal courts will typically “sever” a provision only if it is clear (to whomever is adjudicating the controversy) that Congress would have passed the law even without the severed provision. The Supreme Court determined that both of the controversial measures were severable, whereas the four dissenting justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) were ready to declare the entire law unconstitutional.

It’s also fair to point out that the chief justice justified his construal of the individual mandate as a kind of tax precisely in order to give the greatest benefit of doubt to the American people’s elected representatives; there’s no evidence that Roberts personally supports this radical intrusion of the federal government into the private sector. While it is fair to criticize his particular articulation of the doctrine of judicial restraint, it is at least arguably a lesser evil to the “living constitutionalist” orthodoxy that otherwise prevails in legal circles.

The court did not consider the question of whether the federal government had any constitutional authority to regulate the health care industry in the first place.

Since the New Deal, our left-leaning federal judiciary has adopted the position that the federal government is not one of enumerated powers at all, but that property may be taxed and spent to subsidize anything that can be construed to affect the “general welfare” of the nation. This consensus is one shared by the overwhelming majority of elected officials, including the overwhelming majority of elected Republicans. When it comes to the welfare state and government regulation, the difference between America’s two major political parties is one of degree, not substance.

We are far from the days when the likes of Ronald Reagan could say, “"I believe the very heart and soul of conservatism is libertarianism.” If those on the center-right of America’s political spectrum are so indignant at the prospect of being forced to purchase health insurance, they’d do well to critically reflect on, and question, the very premise that government has a right to force anything on its citizens. For example, how many Republicans even bother to question whether it is proper and just for citizens to be forced to subsidize Social Security, Medicare, and Medicaid, each of which has just as much explicit constitutional warrant as Obamacare? Only when a coherent political ideology is articulated can bold and consistent alternatives be posted to the regulatory, welfare-statist status quo.



Eric Giunta is a member of the Florida Bar. He graduated from Florida State University College of Law, where he served as president of that school's chapter of the nation's premier fellowship of conservative and libertarian law students.