Obamacare Ruling Post-Mortem Thoughts
At a Federalist Society event on Capitol Hill, two attorneys
who spoke at the RNLA’s 2012 National Policy Conference and were intimately
involved in the Obamacare litigation provided their insights into last week’s decision.
Michael Carvin, who represented the National Federation of
Independent Business before the high court, spoke about the majority opinion
upholding the Obamacare individual mandate.
Carvin remarked that it is hard not to be cynical about the
process, with the Court finding the individual mandate exceeds Congress’
commerce power, but somehow fits within its taxing power.
He believes that the court effectively changed the
individual mandate statute, as on its face, the statute establishes fines as a
consequence to the mandate. “No rational person can think this wasn’t a
re-write,” he said.
Further, Carvin was disillusioned about re-writing the
statute to be a tax, considering Congress and President Obama explicitly told
the American people the individual mandate was not a tax. He claimed that
deferring to Congress and the Administration on the individual mandate being a
tax is like “deferring to Bernie Madoff because you believe in the free market
Carrie Severino, Chief Counsel of the Judicial Crisis
Network and author of an amicus brief in the Obamacare case, also spoke at the
She refuted comments that have labeled Chief Justice
Roberts’ opinion as “statesmanlike,” saying that such actions are judicial
activism. “Decisions based on considerations other than the law itself” are
judicial activisim, Severino said, citing a definition promulgated by Judge
Despite the setbacks for opponents of the individual mandate
in the ruling, Severino proffered that there are three “silver linings” that
those on the losing end could take away from the holding.
First, she noted that the holding exposes the dishonesty in
comments by congressional Democrats and President Obama that the individual
mandate does not constitute a tax. As Chief Justice Roberts declared, the
individual mandate only stands because it is an exercise of Congress’ taxing
Second, she believes the holding provided some key narrowing
in commerce clause jurisprudence. Despite upholding the individual mandate,
Chief Justice Roberts provided a fifth vote for establishing that there is an
end to Congress’ oft-cited commerce power, which could be applied in future
Commere Clause cases.
Finally, Severino noted that the decision has created an
opportunity for citizens to become educated on constitutional issues. She
proffered that conservatives benefit when Americans learn more about the
constitutional structure and that Congress is a branch of limited, enumerated
powers under Article I.
While on the same side of the case as Severino, Carvin said
that he is “not of [the] silver lining view.” He called the outcome a “fundamentally
frustrating episode” and repeatedly called the Chief Justice’s reasoning
“sophistry on stilts.”
However, he did say that the politics may benefit
Republicans, and that he hoped this November’s election leads to the decision
that many contend Chief Justice Roberts avoided making – striking the