Fred Thompson: No silver-linings in ObamaCare decision
Since last week’s Supreme Court decision on ObamaCare, politicos of all stripes have been trying to make since of what exactly it all means. Though the right is justifiably angry with Chief Justice John Roberts, many are still claiming parts of the decision, such as the non-binding limitation on the Commerce Clause and the apparent re-birth of federalism. On the left, liberals are just simply excited that President Barack Obama got a win.
But Fred Thompson, a former Senator from Tennessee and candidate for the GOP presidential nomination in 2008, argues that there isn’t much to be excited about from either side of the political spectrum:
The desire to find a Reagan-like pony in all of this has caused some of my conservative friends to see one where none exists. In fact, many pessimistic liberals and optimistic conservatives have one thing in common: the view that somehow the opinion places new limitations on the use of the Commerce Clause, because it was deemed not applicable in Sebelius. They also think that the decision substantially restricts the conditions that the federal government can place on states regarding programs partially funded by the federal government. Unfortunately, in my view, both of these beliefs are wrong.
The majority opinion rejected the Commerce Clause as a valid basis for the individual mandate because, while the federal government can regulate commerce and commercial activity, it cannot compel economic activity, as the mandate attempted to do. The chief justice’s opinion contained a lot of music about the limitations of the Commerce Clause that is easy on conservative ears, but it was essentially the same set of points that conservative justices, usually in the minority, have been making for years. In 1942 the Supreme Court decided in Wickard v. Filburn that a farmer could be penalized for growing wheat on his own farm for his own consumption. Many view this as the high-water mark of the expansive interpretation of the Commerce Clause. The Court in Sebelius in no way overruled or rejected Wickard. On the contrary, the opinion pointed out that in Wickard the case involved the “activity” of growing wheat. In Sebelius there is no commercial activity on the part of one who chooses not to purchase health insurance. Wickard is just as egregious and just as valid as it has always been.
One of the few instances when the Court invalidated a congressional extension of the Commerce Clause was in the case of U.S. v. Lopez in 1995, when Congress tried to penalize gun possession in local school districts. In the Obamacare ruling, the chief justice wrote the following: “The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez … , but it is now well established that Congress has broad authority under the Clause.” So apparently Lopez was just a momentary glitch.
So we can be pleased that the Court did not take the unprecedented step of allowing the absence of activity to be regulated under the Commerce Clause, but that still leaves what I would guess to be 99 percent of future Commerce Clause cases — cases that will involve some sort of alleged “activity” on the part of the person or persons being regulated. We will still have the same ideological split on the Court, probably with the swing vote making a decision based upon how outrageous the federal overreach is. We are essentially where we were before with regard to the Commerce Clause. So, one cheer, not two. And certainly not three.
the Court decided that the federal government could not withdraw all of its previously committed Medicaid funding to a state on the grounds that the state decided not to participate in the Obamacare expansion of Medicaid. The Court did nothing, however, to prevent the federal government in the future from withholding money if a state reneged on previously-agreed-upon federal requirements. Here, the Court simply held that the feds could not egregiously withdraw previously-agreed-upon funding by imposing new requirements that a state could not or would not accept. This holding that states should not be subjected to a bait-and-switch operation was agreed to by seven justices, even though the administration was counting on being able to load part of the cost of Obamacare onto the states by means of this Medicaid requirement.
Again, we should be thankful for this status-quo result, but the political Left has no need for concern that this decision has done anything to diminish the federal government’s ability to call the shots if a state decides to take federal money.
So we are left with no silver linings and one major concern for the future that goes beyond Obamacare. It seems that, after this Court decision, while the government cannot make you buy broccoli under the Commerce Clause, it can tax you if you don’t.
This is largely the way that I’ve felt since the decision was handed down. There is no doubt that Chief Justice Roberts, who reportedly wrote part of the dissent in the case, betrayed the Constitution by offering a political majority opinion in the case. The only silver-lining from the case is political, and that is the path to repeal ObamaCare.
There are indeed limited options for states to dismantle ObamaCare, but to get rid of the entire law, Republicans have to maintain the House of Representatives, which is very likely; win the Senate, which is entirely possible; and win the White House. That is a pretty tall order. If Republicans don’t manage all three, then ObamaCare stays in place. And it looks like some Republican leaders, like Senate Minority Leader Mitch McConnell (R-KY), are already managing expectations.
Thompson is right, but none of this means the battle over ObamaCare is over. There is a solution, but there is a lot of uncertainty in the road ahead toward the end goal.