I was right about the Commerce Clause (and Kennedy), but wrong about the overall Constitutionality (and Roberts!)
John Roberts, majority opinion:
The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
Thing is, the individual mandate was upheld as a valid use of Congress’s tax power.
Most of the time, when the Court finds a reason to uphold a law as Constitutional, it ignores the other arguments put to it and says something like, we have no reason to rule on the commerce clause question because we find this to be okay under the powers to tax. But Roberts didn’t do that here.
The language about the commerce clause is what lawyers call, “dicta” —a statement that cannot be relied upon as precedent because the decision doesn’t rest on it. Dicta is the legal equivalent of saying “blah blah blah” while making an open and shut gesture with your hand like it’s a puppet. But in the Roberts opinion, this might be the most powerful dicta since Footnote 4 of United States v. Carolene Products, which changed the application of the Equal Protection clause for the next 75 years. The reason it’s so powerful is that the four dissenting Justices agree with it, and it clearly states what will likely be a governing principle of the Roberts court: they will hold the line on the scope of Federal power. They might even ratchet it back a bit.
I don’t really understand why Roberts is willing to recognize the individual mandate as a valid application of the tax powers but not of the commerce clause, since in practice the result is the same. Congress can’t force you to buy broccoli, but Congress can put a $100 penalty on you if you don’t buy $100 worth of broccoli. I don’t know what this says about John Roberts. He might be balancing his interest in federalism with being soft on progressive policies. He might just prove to be a libertarian in the best sense of the word, and if that’s the case, it bodes well for things like gay marriage and legalization of marijuana.