Some thoughts on the ObamaCare decision

Those of us that oppose President Barack Obama’s health care law are still no doubt wondering what exactly happened on Thursday when the Supreme Court, in a 5 to 4 decision, opted to keep the individual mandate in place under the Taxing Power of Congress. If you’re still trying to figure out the details of the decision, Philip Klein has put together a good primer on the ruling, breaking it down as simply as the bizarre, confusing opinion can be explained.

The decision does give a break to President Obama, who has been struggling with the weak economy and shaky polling as of late. But, as Michael Barone notes, it may all be short-lived thanks to the law’s unpopularity and now the headache that comes with a clearly defined tax hike on Americans.

But what do we make of the decision itself? There is a lot there to parse through, but here are some points that may help explain parts of the decision and the tenuous future of a push to repeal ObamaCare.

The Individual Mandate is a Tax: Back when Congress was considering ObamaCare, President Obama told George Stephanopoulos that the individual mandate was not a tax. Shortly after passage, the Obama Administration claimed it was a tax. Even though the White House website still claims the individual mandate is not a tax, the administration not only argued that Congress had the authority to pass the mandate under the Commerce and Necessary and Proper clauses, but also under the Taxing Power of the Constitution.

After the decision was handed down, President Obama still insisted that the individual mandate is not a tax, despite his own administration’s arguments to the contrary. There are plenty of other tax hikes in the law to note, but the individual mandate is, even with the Supreme Court’s “blessing,” the worst from practical — given its impact on families making less than $120,000 per year — and constitutional standpoints. It also violates Obama’s pledge not to raise taxes on middle-income families.

They Didn’t Touch the Commerce Clause: This is apparently supposed to make opponents of ObamaCare feel better. The so-called “silver-lining.” While it’s good news that Commerce Clause did get by unscathed thanks to five members of the Supreme Court soundly rejected the Obama Administration’s argument, Conn Carroll notes that the “entire section…is, at best, dicta” (meaning non-binding precedent). Others, however, have said that members looking at future cases involving the Commerce Clause would at least have to take the arguments into account. That is probably a wanting view.

The “silver-lining” about the Commerce Clause is really only limited to this case, and on top of it, we now have a new angle where government can coerce people into engaging in activity or behavior — through the Taxing Power.

At Least They Shot Down Medicaid: This is actually a win for ObamaCare opponents. The Supreme Court, in a rare victory for federalism, did rule that states can opt-out of Medicaid expansion provisions without losing all of their federal funding for the program. States argued that the impact on their budgets would be significant, forcing them to find ways to raise revenue (ie. taxes or fees) to meet the requirements set forward in the law.

The win is great, and some states are already bailing on Medicaid expansion. But from a political standpoint, it may be short-lived. Some competitive states with Republican governors may opt to press forward with expansion rather than face the political fallout of declining more funding for health insurance programs. Moreover, if we are indeed facing a continued period of slow economic growth — or worse, headed for another recession, other states may opt to take the funding to shore up budget shortfalls.

But if states do decide to reject Medicaid funding, they should also reject the exchanges that are part of ObamaCare.

John Roberts is a Political Genius: I’ll have more on this particular point made my several conservative later today. Those of us that oppose ObamaCare are rightfully upset with how Chief Justice Roberts sided in this case. It’s confusing, contradictory, and an affront to the principles of this constitutional Republic. But again, stay tuned until later in the day.

There is a Path to Repeal: While Chief Justice Roberts expanded the Taxing Power of Congress to tax inactivity, he did provide a way out of the law that wouldn’t have been conceivable if the Supreme Court had used the Commcerce Clause. Provided Republicans win the net-four seats needed to take control of the Senate, they could use budget reconciliation — the same procedure used to pass ObamaCare — to push through repeal. Budget reconciliation bypasses the filibuster, eliminating the 60-vote hurdle; meaning that only a simple majority is needed. And this does indeed seem to be the route Senate Republicans are poised to take to repeal ObamaCare.

However, Republicans maintaining their majority in the House and winning the Senate wouldn’t be enough. They would also need to win the White House. That’s going to be a very tall order.


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