Oral arguments over the constitutionality of the Patient Protection and Affordable Care Act are wrapped up. The Supreme Court is expected to issue its ruling in June. In the meantime, conservatives, constitutionalists and libertarians will anxiously await the Supreme Court’s decision, hoping that the justices find the mandate unconstitutional. They should be hoping for the opposite.
To be clear, the mandate is absolutely unconstitutional. The commerce clause was never intended to allow the federal government to micromanage every aspect of commerce (it was intended to allow Congress to “make regular” commerce between the states by prohibiting tariff wars between them), and the power to tax does not carry with it the power to compel a purchase that otherwise would not have occurred.
Constitutionally minded individuals generally agree with that argument, and therefore want the Supreme Court to rule against the mandate. This is understandable, and a nearly universal opinion amongst this group. But in the long run, the goal of upholding the Constitution and promoting conservatism or libertarianism would actually be better served by the court declaring that the mandate is constitutional.
Too many Americans today wrongly believe that the U.S. Supreme Court is the sole and final arbiter of what is or is not constitutional. Questions of a law’s constitutionality thus become held hostage to the opinions and preferences of a small, elite group of lawyers dressed in black robes who are expected to keep the rest of the federal government in check — as if in a battle between the states and the federal government, a branch of that very federal government would be completely free of any conflict of interest.