Although the Supreme Court’s four liberal justices joined Chief Justice John Roberts in upholding ObamaCare’s individual mandate under Congress’ Tax Clause powers today, the liberals were not so happy with Roberts’ decision to reject the Obama administration’s expansive Commerce Clause arguments. Here’s Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, attacking Roberts for daring to suggest that the Commerce Clause isn’t a blank check:
The provision of health care is today a concern of natonal dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.
Since 1937, our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm.... THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”
So at least Roberts got the Commerce Clause right.