Like most conservatives/libertarians, I would have wished the Court had firmly and undeniably squashed the individual mandate portion of the health care reform legislation passed by Democrats in 2010. But I have found quite a bit to like from Chief Justice Robert's majority opinion.
First, the Court firmly stated that legislation such as this could not be brought forward under the guise of the Commerce Clause. While the Court has allowed Congress broad leeway in using that portion of the Constitution to increase its regulatory powers, it drew a line in the sand on the ability to compel individuals to participate in commerce. That's a good victory for those who would like Constitutional limits to be something more than historical footnotes.
Second, they also eschewed the notion that the Necessary & Proper clause could, on it's own allow Congress to compel individual action such as is required under the new law. Again, the Court (and Justice Roberts) clearly articulated a conservative view on this point.
Unfortunately, Justice Roberts left the "conservative" perspective when upholding the individual mandate as a part of Congress' taxing powers. But did he really abandon the conservative cause on this issue? While the outcome was one no conservative really supports, Robert's reasoning can be substantiated through a conservative line of thought.
Robert's most effective point in supporting upholding the mandate as a "tax" is that we already use the tax code to reward or punish individual behavior. I won't go through an exhaustive list, but the most obvious is the tax reward for purchasing a home. By allowing home owners to deduct the interest on their mortgage, the government punishes non-home owners by requiring them to pay higher taxes.
Since most conservatives believe home ownership is a "good" thing, they haven't minded this, or many other such utilization of the tax code. But if we allow that the tax code can be used to reward or punish individual behavior, then whatever behavior Congress determines as desirable can be rewarded - and whatever it deems undesirable can be punished. I hate to use the "slippery slope" moniker, but...
Another strong point from Robert's opinion was a very simple one: If it looks like a duck, walks like a duck, and quacks like a duck, then it's a duck. This "penalty" as the Obama Administration refers to it, is collected by the IRS via the normal income tax process, and enforcement of it comes through the IRS as well. Despite what the President and his supporters want to argue, this is, and always has been, a tax. Roberts simply confirmed what conservatives and others had been arguing since the legislation was introduced in Congress.
However, something happened between the oral arguments before the court and it's final ruling. Conservatives were stunned when Roberts took a truly conservative stance. A little acknowledged part of Robert's opinion explains that the Court has an affirmative obligation to sustain the constitutionality of legislation, if it can be done in a reasonable manner. Roberts cited precedent in previous Supreme Court rulings to support this perspective and, to my knowledge, no one has stepped forward to challenge it.
So if it's accepted practice to use the tax code to reward or punish individual behavior, and if this "mandate" is indeed a tax, then Robert's reasoning makes sense, even if it creates a result I, or my fellow conservatives, oppose.
But here's what I really like about the ruling. It will force conservatives to rethink this habit of utilizing the tax code for "behavior modification." If they are at all serious about personal liberty, it should also compel conservatives to rethink the income tax entirely. And not just changing from our current system to a "flat" tax. But repealing the 16th Amendment and eliminating the thing completely.
Will this happen? I don't know. But, if those who hold themselves out as conservative leaders have any intellectual integrity at all, they will take Robert's ruling as the cue to free our nation from the most insidious form of government financing developed. If they do, Robert's opinion will become the catalyst for the single greatest freedom enhancing action in my lifetime.
