Okay, so the editors of the Wall Street Journal didn’t really lead with that headline. But they did put some meat on my bare-bones argument questioning whether Justice Roberts’ health care decision properly considered whether Congress can use the taxing power as a bootstrap to pull an otherwise unconstitutional law out of the legal gallows. The Journal’s editors opine:
The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.
In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing “taxes” whenever someone does or does not do something contrary to its desires.