Silver Linings in SCOTUS Obamacare Ruling

[Editor’s note: This post should not be construed as an endorsement of Mitt Romney or of Republican candidates for U.S. Senate or U.S. House in 2012. The author is a political media strategist by trade.]

Regular readers know I am not a lawyer, and that I do not specialize in health policy. I also did not come to Washington through Capitol Hill and am therefore no expert in parliamentary procedure. Still, I wanted to share a few thoughts on the Supreme Court’s decision to uphold Obamacare — some original, some not — and they’re not all bad.

First, here’s the opinion itself (PDF).

Second, the greatest legal minds on the left have spent the last couple of years arguing that the individual mandate is constitutional under authority granted to Congress under the Commerce Clause and Necessary and Proper Clause. The Court summarily rejected this argument, and that is great for individual liberty. Congress does not, as Obamacare opponents have argued all along, have the power to force you to buy health insurance, broccoli, or anything else. It does not have power to regulate economic inactivity.

Third, the mandate was upheld because Chief Justice Roberts wrote that the penalty for not purchasing health insurance can reasonably be construed as a tax. Because the power to tax is an enumerated power of Congress as outlined in Article 1, Section 8 of the Constitution, this provision of the law was upheld.

An interesting political point — in September 2009, fearing political blowback from pushing so hard for the law, the president flatly rejected that Obamacare constituted a tax increase on Americans during a recession:

This should be television ad GOLD for Republicans for the rest of campaign season. If Mitt Romney can’t incorporate this into his economic messaging, he doesn’t deserve to be president.

Also expect the first bullet point of this December 2009 White House blog post to be scrubbed soon:

Obamacare is a tax

And an interesting substantive point — an undergrad political economy professor of mine notices that, for purposes of standing (the right to sue the government over the law), the Court held that the mandate provision was a regulatory penalty, but in finding authority to uphold it, construed the mandate to be a tax. As implementation proceeds, it’s not unreasonable to expect further litigation to clarify the precedent.

Fourth, Obama promised on the campaign trail that he wouldn’t raise taxes “one cent” on the middle class. The Court affirmed today what the rest of us have known all along: Barack Obama is a categorial liar.

Fifth, as a tax, I believe the mandate provision can be repealed through budget reconciliation. This is important, because reconciliation bills only require a simple majority in the Senate (51 votes), as opposed to a filibusterable 60-vote piece of legislation. I’d really like clarification on this point.

Sixth, Obamacare’s Medicaid expansion provisions were struck down by the Court. Roberts and company affirmed states’ rights to not participate in the expansion of Medicaid programs. My former Cato Institute colleague Michael Cannon has been arguing recently that states should flatly reject the creation of insurance exchanges, and it’s now more important than ever that they do so:

Political strategy for Republicans going forward from this decision is clear: work hard for Republican Senate candidates, turn out the base for down-ballot races, and hope that conservatives disenchanted with Romney wind up pulling the lever for him while they’re in the voting booth.


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