Colorado Attorney General John Suthers has summed up rather well the feelings of those disappointed by the Supreme Court’s opinion on the Affordable Care Act – namely, that it makes no difference whether Congress can force us to buy a product under the Commerce Clause or the federal tax power. The result, after all, is identical: a tremendous victory of the central state over the individual.
“Today’s decision is extraordinary and unexpected, and it is frankly a blow to our constitutional system of federalism,” Suthers said. “The Court has endorsed Congress’s unprecedented decision to mandate that individual Americans buy a particular product or service or pay an economic sanction. While the Court did not rest its decision on the Commerce clause, and agreed with the states’ argument that Congress cannot use that power to compel economic activity, they have permitted the federal government to force individuals to buy a product. Whether Congress does so under the Commerce Clause or the federal tax power, the result is the same – an unprecedented expansion of federal power.”
“The Court has approved the stick and not the carrot. Congress can now penalize individuals for refusing to buy a commercial product.”
Suthers is also onto something when he says that “Whatever limits remain on Congress’s power” – at least when it comes to federalism – “will now be left to the political arena.” That’s hardly comforting, since it was the political arena that asserted authority over individual economic activity in the first place.