What Do Constitutional Scholars Think About Roberts Decision?

Laura Ingraham had a great interview with two constitutional scholars last night, Michael Carvin, the attorney who argued the case before the Supreme Court and law professor John Eastman. She started with a quote from Ann Coulter from 2005, “We don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.” Carvin said that Roberts deliberately ignored the law and called a ball a strike. Eastman said Roberts should resign. From Mediate’s report:

Ingraham asked her guests if conservatives are right to feel “mortified” about Roberts being a turncoat. Michael Carvin, a constitutional lawyer opposed to Obamacare who argued before the Supreme Court on this case, boiled Roberts’ decision down to “What Congress did… was unconstitutional, so I’m gonna pretend they did something different and make it constitutional.” He credited Roberts for being “a terrific lawyer who understands the rule of law,” but admitted that unlike Coulter, he did not see a ruling like this coming.Law professor John Eastman also found the ruling somewhat questionable, stating that the role of the Supreme Court is to tell Congress whether they have or don’t have the authority to do something. And for Roberts to do what he did and find and alternative way to keep it constitutional, Eastman concluded that the chief justice needs to resign.

At the Weekly Standard, Jay Cost makes the case for John Roberts, saying that there is a counterintuitive case to be made that Roberts’ decision is a victory for conservatives.

This points to the gravest danger of Obamacare. Much like the progressives of the 1910s, the New Dealers of the 1930s, and the liberals of the 1960s, Obama and his allies assured us that this law was entirely consistent with what had been offered in the past. Nothing new to see here; move along! But that was not at all true. In fact, Obamacare represents the single greatest qualitative expansion of federal power in 80 years.But, in a subtle way, Chief Justice Roberts did away with much of that. Where he could justify Obamacare on existing federal authority, like the taxing power, he let it stand. Though his factual argument here was admittedly strained, his legal reasoning seems to have created no qualitative expansion of the federal taxing power, which is very broad to begin with (and has been for centuries). But where there was no extant power to back up the bill, he struck it down. In so doing, Roberts actually secured two, hugely important consitutional victories (if not policy ones) for conservatives. He lmited the scope of the Commerce Clause in a meaningful way, spoiling the liberal hope that it confers upon the Congress a general police power. He also won a significant victory for supporters of our dual sovereignty system; by striking down portions of the Medicaid expansion, he sent a clear message that there are limits to how the federal government can use money to boss the states around. These are two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.

Cost goes on to point out that there are many who are made worse off by the bill, including “seniors who lose their Medicare Advantage, employees who get dropped from their employers’ plans, families who will see their premiums increase, businesses that have to endure the employer mandate, the taxpayers who have to foot the bill for the whole thing.” In other words, the bill is politically unpalatable, and, in Cost’s opinion, conservatives can more easily deal with policy problems at the ballot box than they can stealth the constitutional innovations.

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