For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here:
Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also a partial vindication for those of us who worked to get the mandate struck down. Chief Justice Roberts’s opinion for the Court actually rejects the federal government’s most important arguments for the mandate: that it is authorized by the Commerce Clause and the Necessary and Proper Clause. It also reaffirms the need to impose limits on federal power and emphasizes that Congress does not have the authority to impose whatever mandates it wants. Yet Roberts then snatched defeat from the jaws of victory by ruling that the mandate is constitutional because it is a “tax....”
Fortunately, Thursday’s closely divided decision is not the end of the debate over the scope of federal government power.