(Im)Proper Constitutionalism: Roberts’ Revenge?
Now that the original frenzy over the ACA ruling has died done (a little), folks are starting to dig a little deeper into the opinions (particularly Roberts’) to figure out what it means for the next case (incidentally, you can read the opinions here). Chief Justice Roberts’ formulation is that the individual mandate does not lie within Congress’ commerce clause power (nor the necessary and proper clause), but functions effectively as a tax and thus is part of Congress’ taxing power. Now that I’ve quickly read over the commerce/N&P parts of the opinions (well, Roberts, Ginsburg, and the joint dissent), I have a few thoughts on them as well. Short version — in trying not to uphold the ACA under the Commerce Clause, Chief Justice Roberts might have opened the door the most unconstrained constitutional activism the nation has ever seen: Laws are unconstitutional if judges think they’re not “proper”.