RADICALLY CONSERVATIVE, NOT RADICALLY RIGHT:

Roberts's opinion will not have the dramatic conservative effects that are being claimed for it. In this case, the first headlines were correct: Roberts actually exercised judicial restraint -- and the decision is a victory for anyone who believes that such restraint is a good thing.

The first topic of revisionism is Roberts's statement that Congress lacked authority to enact the ACA under the Commerce Clause, because the health-care-reform law regulates inaction (failure to buy insurance) rather than action. Roberts, writing only for himself, essentially bought the broccoli argument: If Congress can require you to buy health insurance, what is to stop it from making you buy (and eat) your vegetables?

On the surface, this looks like a win for conservatives and a restriction on Congress' commerce power. It isn't. The reason isn't that the four conservatives, including Justice Anthony Kennedy, deliberately chose not to join Roberts's opinion (maybe because they were angry at him for breaking ranks). It is that in the real world, as opposed to the realm of legal theory, there is no meaningful difference between action and inaction. In the future, Congress can simply phrase Commerce Clause commands in the affirmative.

Consider the Civil Rights Act: Does it require public businesses to serve customers regardless of race? Or does it prohibit them from refusing to serve customers on the basis of race? See the difference? Oh yes, there isn't one.

If that weren't enough, there is also Congress's power to tax, on which Roberts relied. If Congress wants to penalize you for not doing something in the future, it can impose a tax. And as Roberts's ACA decision affirmed explicitly, Congress doesn't even have to call it a tax. In short, in practical terms, Congress has no less power than it had prior to the decision.

We have been down this road of pseudo-limitations on the commerce power before. In the 1990s, the Supreme Court twice struck down laws for exceeding the commerce power, once in the case of the Gun Free School Zones Act and once concerning a provision of the Violence Against Women Act. Constitutional lawyers sweated over whether the extensive commerce power had been meaningfully restrained. In practice, they concluded, it had not. Congress could find ways to do what it needed -- and it still can.

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