Law and economics guru Henry Manne kindly authorized me to share his thoughts on the Obamacare outcome:
This may sound like heresy, but I am rather fond of today's opinion on Obamacare (perhaps, to make full disclosure, because I predicted that the Court would not find it unconstitutional). I certainly would prefer a system under which Congress is constrained all the way around, commerce, taxing, necessary and proper or what have you. But that is not at the moment the world we live in. But you will excuse me for saying that I believe we are a lot closer to that world today after this opinion than we would have been had this court said something like Scalia's dissent. That would simply have been too dramatic a shift for the polity, and the Court would have found itself in real political jeopardy in years to come. And, if you think back through post-Marbury Constitutional history, the Court has never been a particularly courageous institution. Punt has been their usual strategy for dealing with really critical issues.
But look, we now have a majority of the Supremes agreeing with Roberts' limitations on the Commerce Clause (and that, after all, is where the real constitutional fight has been for over 75 years) and putting real restraint on the idea of forcing states to do something by conditioning it on federal money (the thing that let the feds into speed limit controls and a lot of their educational ands welfare junk). The taxing power is not nearly as liable to turn into the next opening for federal powers. First of all, if a thing is recognized as a tax, no one wants credit for it (NB the Obama folks' efforts to avoid calling this one a tax); second of all, if this does open a new constitutional avenue for the exercise of federal powers, it will take many decades to find out what it really means in practice, and it may, for reasons unimaginable right now, prove to be a dead letter. Will every mandate have to be initiated in the House of Representatives as tax bills do? Hmm, that would be a pretty severe restraint right there. Will it have to be "proportional" among the states, whatever that means? Meanwhile we have put real teeth back in the Commerce Clause, which is exactly where restraint needed to be. And the Supreme Court is free to fight its little battles at the margin, where its powers are not seriously threatened.
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