Supreme Court and Obamacare: Judicial Activism or Judicial Review?

The deeper meaning and implications of the Obamacare case for the Supreme Court’s reputation and constitutional law will be debated for years to come. In its annual Supreme Court review event at Heritage yesterday, an all-star cast of scholars, advocates (including Solicitor General Donald Verrilli), and journalists tackled those topics.

The Court did rule that the Obamacare insurance mandate violates Congress’s Commerce Clause power. But Chief Justice John Roberts reframed the statute to let it stand under Congress’s power to tax. Legal scholars disagree whether that reframing—or judicial rewriting, as the dissent claimed—was convincing or legitimate, but the implications of that distinction for future cases are even more in question. For many opponents of the law, including Michael Carvin, who argued the case in the Supreme Court for the National Federation of Independent Business, the distinction doesn’t make much of a difference.

“The operation was a success, but the patient died,” Carvin said during The Heritage Foundation’s annual Scholars and Scribes panel. Carvin added that the Court’s ruling could greatly enhance Congress’s power to regulate through phony taxes. Lawmakers will be able to pass any “penalty” they want, Carvin said, and count on Roberts to redefine it as a “tax” for constitutional reasons.



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