Defying the expectations, Justice John Roberts — said to be a relentless conservative activist — joined the court’s “liberal wing” in saving the law by grounding the “individual mandate” not in the power of Congress to regulate commerce, but in its taxing power. As I suggested yesterday, the court essentially said that Congress could not require people to buy something in the private economy, but they could fine them if they didn’t. The court found that power to fine, in the taxing power of Article I. Now the president will have to figure out a way to make the fines in the law — which are weak and toothless — real.
The idea to require all Americans to buy private health insurance was hatched in a conservative think tank, first deployed by a Republican governor (Mitt Romney) and at first opposed in the Democratic 2008 presidential primaries by candidate Barack Obama. But as soon as he had he vanquished Hillary Clinton - a proponent of the mandate — he privately decided to support it. “I kind of think Hillary was right,” he told an aide in the summer of 2008, according to Princeton professor Paul Starr. There were those — including Starr — who had publicly and privately warned that the mandate was a risk, but once in the White House Obama and his aides (many, ironically, Clinton veterans) ignored the warnings.
The obvious big political winner, at least initially, is President Obama. Had the court thrown out the core mechanics of the law, his signature accomplishment would have been in shambles. He can take to the campaign trail with the backing of none other than George W. Bush appointee Roberts. His polls were on the upswing and may get a boost. There are troubles down the road. He has to make the fines real. Most people don’t like the mandate, no matter what it is grounded on. Republicans and Romney, their presumptive nominee, will make overturning the law their crusade for the campaign, and they will have the polls on their side.
Beyond the political back-and-forth, the 5-4 ruling is an example of the durability of our system, and of Roberts’ desires to protect the reputation of the institution as the one place in the country that is above politics. The court is the most essential part of our system of government by the rule of law. It takes the place in our system of faith or royalty as the ultimate arbiter of Truth in the public realm. Roberts understood that, and protected it.