Skip to main content

Court's ruling a 'Frankenstein's Monster'

By Ilya Shapiro, Special to CNN
updated 10:19 AM EDT, Fri June 29, 2012
Protesters argue outside the U.S. Supreme Court Thursday after Justices upheld the Affordable Care Act.
Protesters argue outside the U.S. Supreme Court Thursday after Justices upheld the Affordable Care Act.
STORY HIGHLIGHTS
  • Ilya Shapiro: High Court rejected notion that mandate justified under Commerce Clause
  • But it justified it instead under taxation power; this is constitutional excess, he says
  • He says in doing this, the court illegitimately rewrote the health reform act to save it
  • Shapiro: Justices should be applying the Constitution. To fix this, ball is now in voters' court

Editor's note: Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor in chief of the Cato Supreme Court Review. He filed ten briefs in the various lawsuits challenging the Affordable Care Act, including four at the Supreme Court.

(CNN) -- Today's heart-wrenching, baby-splitting Supreme Court decision illegitimately rewrote the Affordable Care Act in order to save it. It's certainly gratifying that a majority on the court rejected the government's dangerous assertion of power to require people to engage in economic activity in order to then regulate that activity.

That vindicates everything that we who have been leading the constitutional challenge have been saying: The government cannot regulate inactivity. It cannot, as Chief Justice John Roberts put it in summarizing his opinion from the bench, regulate mere existence.

Ilya Shapiro
Ilya Shapiro

Justifying the individual mandate under the taxing power of Congress, however, in no way rehabilitates the government's constitutional excesses. As Justice Anthony Kennedy said in summarizing his four-justice dissent, "Structure means liberty." If Congress can avoid the Constitution's structural limits simply by "taxing" anything it doesn't like, its power is no more limited than it would be had it done so under the Commerce Clause.

Opinion: Health care victory, but still a long way to go

While imposing new taxes may be politically unpopular and therefore harder to do than creating new regulations, that political check does not obviate constitutional ones -- and in any event, Congress had avoided even that political gauntlet here by explicitly structuring the individual mandate as a commercial regulation.

Nor does the Supreme Court vindicate its constitutional legerdemain by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations. While correct on its face -- and a good exposition of the spending power and what strings the federal government can attach to its funds -- that analysis is relevant to a hypothetical statute, not the one that Congress actually passed when it passed health care reform legislation.

Obama: This is a victory for the people
Romney: I'll do what justices didn't
How will the court's ruling affect you?

Opinion: Liberty lost? The Supreme Court punts

Moreover, allowing states to opt out of the new Medicaid regime while leaving the rest of Obamacare in place throws the insurance market into disarray, increases costs to individuals, and gives states a Hobson's choice -- different but no less tragic than the one it previously faced. As Kennedy wrote in dissent, while purporting to apply judicial modesty or restraint, the court's rewriting of the law is anything but restrained or modest.

In short, we have reaped the fruits of two poisonous trees of constitutional jurisprudence: On the one (liberal activist) hand, there are no judicially administrable limits on federal power. On the other (conservative pacifist) one, we must defer to Congress and presume (or construe) its legislation to be constitutional. It is that tired old framework -- with four justices in the former category and one in the latter -- that produced the Frankenstein's Monster of today's ruling.

Gergen: Are voters ready to move on?

What judges should be doing instead is applying the Constitution, no matter whether that leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

In any event, the ball now shifts to another court, that of the people -- the ultimate sovereigns who, in ratifying the Constitution, delegated certain limited powers to the federal government. Many have opposed Obamacare all along and it is they who must now decide -- or not -- to rein in the out-of-control government whose unconstitutional actions have taken us to the brink of economic disaster.

Follow us on Twitter: @CNNOpinion.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Ilya Shapiro.

ADVERTISEMENT
Part of complete coverage on
updated 6:10 PM EST, Mon November 24, 2014
If Obama thinks pushing out Hagel will be seen as the housecleaning many have eyed for his national security process, he'll be disappointed, says David Rothkopf.
updated 8:11 AM EST, Tue November 25, 2014
The decision by the St. Louis County prosecuting attorney to announce the Ferguson grand jury decision at night was dangerous, says Jeff Toobin.
updated 3:57 AM EST, Tue November 25, 2014
China's influence in Latin America is nothing new. Beijing has a voracious appetite for natural resources and deep pockets, says Frida Ghitis.
updated 4:51 PM EST, Mon November 24, 2014
Iranian President Hassan Rouhani speaks during a press conference in the capital Tehran on June 14, 2014.
The decision to extend the deadline for talks over Iran's nuclear program doesn't change Tehran's dubious history on the issue, writes Michael Rubin.
updated 2:25 PM EST, Fri November 21, 2014
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
updated 7:44 AM EST, Fri November 21, 2014
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
updated 6:29 PM EST, Thu November 20, 2014
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
updated 8:34 PM EST, Thu November 20, 2014
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
updated 3:12 PM EST, Thu November 20, 2014
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
updated 10:13 PM EST, Thu November 20, 2014
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
updated 8:21 PM EST, Thu November 20, 2014
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
updated 5:56 PM EST, Thu November 20, 2014
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
updated 3:11 PM EST, Wed November 19, 2014
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
updated 8:45 AM EST, Wed November 19, 2014
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
updated 8:19 AM EST, Wed November 19, 2014
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
updated 10:19 AM EST, Wed November 19, 2014
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
updated 12:59 PM EST, Wed November 19, 2014
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
updated 9:58 PM EST, Mon November 17, 2014
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
updated 4:41 PM EST, Tue November 18, 2014
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
updated 8:21 AM EST, Mon November 17, 2014
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
updated 7:16 AM EST, Mon November 17, 2014
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
updated 11:07 PM EST, Sun November 16, 2014
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT