A number of people have noted today that the Supreme Court ruling upholding Obamacare placed limits on federal power by ruling that the commerce clause does not give government power to regulate inactivity. How big a deal is this?
People on the right (see Jay Cost) have argued that this is a big victory for conservative governance. People on the left (see Jonathan Chait) have argued that this casts a shadow over the decision, potentially limiting Congress’s ability to regulate interstate commerce and opening the door to future decisions favoring right -wing economics.
But a legal scholar I spoke to now dismissed the importance of the ruling on the commerce clause, arguing that it’s largely beside the point, and that the ruling still represents an expansion of federal authority.
Barry Friedman, a New York University law professor who wrote a brief supporting Obamacare, argued that by affirming the ability to regulate with taxing power, the decision created a precedent for future regulation along these lines.
“They can’t make you eat broccoli, but they can tax you for not eating it,” Friedman joked, by way of summarizing the meaning of the decision. This is, of course, a reference to what Jonathan Bernstein has called the Broccoli Tyranny argument.
If Friedman is right, then the upshot is: Broccoli Tyranny lives.
Friedman pointed to this segment of the decision:
The court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.
Friedman suggests that this ratifies the power to tax to regulate inactivity. He acknowledged that the justices put a stop to the use of the commerce clause to do this but added: “I don’t see them as withdrawing power. The chief justice validated taxing to do exactly the same thing.”
Friedman added that the inability to regulate inactivity via the commerce clause isn’t any great loss — since it’s unclear how much of this we would have wanted to do in the future in any case. The more important point, he said, is that the decision upheld the right of the government to regulate via taxation.
“This is far more devastating to federalism and the balance of power between states and the national government,” he says. “You can now tax pretty much anything.”
For more on the Supreme Court ruling: