Thursday morning, the much anticipated Supreme Court ruling on ObamaCare was released, and it validated two of the three predictions I made in an article two years ago; namely, that it would be a 5-4 ruling, that Justice Kennedy would side with the majority, and that it would be overturned. This is one time I’d be happy to get only one of three right. For conservatives and libertarians, this was the worst possible outcome. Or was it?
The ruling was issued shortly after 10AM, and by 11AM I was alternating between suicide watch and impotent rage at the injustice of it all. On Facebook, I posted that this marked the final nail in the coffin for federalism, and that there were no longer any practical limitations on what government could force us to do. I was physically ill, literally, from contemplating what this meant for our republic. Luckily, before I threw myself off the proverbial cliff, the words of my friends at United Liberty (along with preliminary analysis from Human Events and a few other sources), and a perfunctory review of the actual text of the majority decision, led me to believe all was not lost. Indeed, though clearly this ruling is a blow for limited government, and common sense, Chief Justice Roberts (who I initially called a traitor), may have just slipped us the keys to long-term victory, unnoticed by statist liberals busy celebrating their policy win.
The following are mostly my own thoughts, but if there is a point that is particularly insightful, it is probably something I commandeered from those mentioned previously. Having said that…
When the ruling came down, the gut shot was so hard that I did not listen to the details, and so did not realize that Roberts upheld the law on the basis of the legitimate taxing power of Congress under Article I, Section 8. That would have been a logical assumption in that Obama’s Solicitor General argued before the high court that the individual mandate was NOT a tax, but a penalty, the same argument made by Obama and all of his minions. That was obviously confusing, since one would not expect the Court to uphold the law using an argument that the administration refused to make. In this ruling, Roberts stated emphatically that this IS a tax, and therefore is constitutional.
At the same time, for possibly the first time in decades, Roberts explicitly established limitations on Congress’s use of the Commerce Clause as justification to enact virtually any policy that Congress could make even a tangential case for. Said Roberts, “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions…Any police power to regulate individuals as such, as opposed to their activities, remains vested in the states.” In one short paragraph, Roberts reaffirmed the principle of federalism and enacted philosophical restraints on use of the Commerce Clause.
Shockingly, this nod to federalism was upheld 7-2 (Ginsburg, Sotomayor dissenting) when the court ruled that the federal government could not force states to participate in this new expansion of Medicare. In invalidating this provision of the law, what other possibilities does this open up? The federal government loves to issue decrees from Mount Olympus and then let the states worry about how to deal with the repercussions, not the least of which is the cost. How might this affect unfunded federal mandates under NCLB, Clean Air Act, the ADA Act, etc.?
Obama and the Democrats bullied and threatened the Supreme Court, making a public spectacle of the claim that if the Court struck down the law, it would be proof that it was politically-motivated. In the aftermath, President Obama was forced to praise the ruling, and the Bush-appointed Chief Justice who upheld his signature policy achievement. That is going to make it very hard for Democrats to now claim partisanship by the court on future controversial rulings as he did with the Citizens United ruling.
In essence, Roberts has potentially handed Republicans a temporary defeated, with the prospect of a major victory in the November elections and beyond. Consider this: despite the law being upheld, it still remains deeply unpopular with the American people, and the ruling will likely drive many voters to Romney that would not have voted for him otherwise, simply on Romney’s promise to repeal the law immediately. This has also had somewhat of a Pearl Harbor effect on the conservative/TEA Party base of the Republican Party, the unexpected decision deemed as an assault on individual liberty and limited government. Democrats, on the other hand, are faced with defending a very unpopular health care reform law that has already doubled in projected costs, has already cause the number of uninsured to rise, has stripped $500 BILLION from Medicare (and we thought that it was Republicans that were supposed to be trying to destroy MediCare), and is simultaneously the largest tax increase in history. Which side would you rather be on?
The bottom line is that, with this carefully crafted ruling, Roberts has basically told the American people to stop running to mommy and daddy as the referee for every dispute and work it out ourselves. The ObamaCare monstrosity is a legislative creation, and if we don’t like it, instead of whining to the Court, we should repeal it and vote out the cretins that foisted it upon us. Romney has already promised that he will repeal the law if elected, and the House of Representatives has repeatedly voted to repeal the law both in part and in total, but has been blocked by the Democrat-controlled Senate. There is also a strong possibility that Republicans can gain the four seats needed to regain the Senate, and more. In addition, since Roberts framed this ruling as a taxing power issue, it opens the door for Republicans to repeal this under reconciliation rules (after all, it was passed under reconciliation), meaning that Republicans would need only a simple majority in the Senate, not the usual sixty votes to end a filibuster and force cloture.
There are certainly some bright rays of sunshine for us here, especially considering how dark and hopeless things initially seemed in the wake of this ruling. Romney raised several million dollars within hours of this decision coming down. Republicans and conservatives are energized and itching to jump back in the fight.
This new hope should also be tempered, however, with a bit of realism. Every voter should now understand that when we neglect our civic duty to be informed and engaged citizens, we leave ourselves at the mercy of politicians whose goals and motivations are not necessarily in line with our own. Within the Republican Party, it means that, once and for all, we must realize we can no longer just vote “R” without thoroughly investigating our candidates and their positions and voting record. After all, it was the senior Bush who raised our taxes, and his son that accumulated $4 trillion in new debt, a record before Obama came along. It was Republicans that gave us the anti-federalist No Child Left Behind, the MediCare Part D welfare expansion, and the assault on free speech known as McCain-Feingold campaign finance reform.
Chief Justice Roberts has fired a shot across our bow and warned us that we must rein in the power grab by the legislative and executive branches. If we do so, we can see a return to limited government, individual freedom, and economic prosperity. If we don’t, then we will become mere cogs in the machine of the socialist state, slaves to the government. The choice is ours in a few short months.