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.
Well, it’s the day after Obamacare was ruled Constitutional. I thought I would wake up feeling much like yesterday: dejected. But a funny thing happened. I read a couple of pieces that left me optimistic about the long term effects of yesterday’s ruling.
The first one was a great article by Sean Trende, over at RealClearPolitics. Not only does he juxtapose the Roberts opinion with Chief Justice John Marshall’s in the Marbury v Madison case, but he also offers some interesting insights:
1. The law still has a good chance of not being implemented.
Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented. But if Mitt Romney wins the November election, it is highly likely that Republicans will win the Senate as well. Right now, Romney probably has no worse than a 50-50 chance of being elected. I honestly don’t think in the long run this changes things that much. The next jobs report will have a much greater impact on Obama’s re-election bid over the long haul than this decision.
If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.
2. Doctrinally, The Federalist Society got everything it wanted.
[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:
Today, the Supreme Court will take up perhaps one of the most important cases we’ll see in our lifetime. Over the next three days, members of the nation’s High Court will hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as ObamaCare.
While we’ve seen several important cases over the 20 years that have dealt with economic and civil liberties — including property rights, free speech, and habeas corpus, Department of Health and Human Services v. Florida deals directly with the limitations placed on Congress by the Constitution.
The question of whether or not ObamaCare is good policy is meaningless to the Supreme Court. The issue at hand isn’t that law won’t keep health insurance premiums, or because it raises taxes or that it is unpopular with the American public. The only thing that matters, or at least should matter, is the Constitution.
During today’s oral arguments, the Supreme Court will hear an hour of arguments on whether or not legal challenges to the individual mandate are barred by the Anti-Injunction Act. The reason for this question is because the penalities that would be imposed by the individual mandate won’t be in place until 2014. Since no one has been necessarily impacted by the policy, the theory is that the court could punt until it’s implement.
Last week a severe blow was dealt to the long-term prospects of ObamaCare. U.S. District Court Judge Henry E. Hudson ruled that the Minimum Essential Coverage Provision (commonly referred to as the “individual mandate”) is unconstitutional. ObamaCare required weeks of arm-twisting and bribes, along with a labyrinthine process of obscure parliamentary procedures, to get the bill passed without a final vote. Even then it required Nancy Pelosi keeping her caucus in Washington (and away from the growing number of voters back home vehemently and vocally opposed to the bill) until nearly midnight on Christmas Eve in order to get the bill to pass by a hair.
There are a number of constitutional issues with the health care “reform” legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.
Despite saying last year that the individual mandate is not a tax, the Obama Administration is arguing the opposite as it defends ObamaCare in federal court:
When Congress required most Americans to obtainor pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”
And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.
Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.
Under the legislation signed byin March, most Americans will have to maintain “minimum essential coverage” starting in 2014. Many people will be eligible for federal subsidies to help them pay premiums.
In a brief defending the law, the Justice Department says the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.
Here is what President Barack Obama said last year:
The Senate moved closer to passing the Internet sales tax on Thursday. The chamber had already started debate on the measure, dubbed the “Marketplace Fairness Act,” but the vote last week bypassed any hope of a filibuster. Some conservative groups are increasing their efforts in opposition to the tax.
Americans for Tax Reform (ATR), headed by Grover Norquist, presented the constitutional case against the Internet sales tax. The case is in response to recent comments by David French, a lobbyist for the National Retail Federation, who said, “The industry is evolving very rapidly, and the law today is a 20th-century interpretation of an 18th-century document that is holding back the entire retail industry as it adapts to 21st-century consumer preferences and demand.”
“The Commerce Clause in the U.S. Constitution affirms that states cannot tax across their borders. Physical presence within a state’s boundaries is required for a state to be able to tax a business, a consumer, or a sale,” John Kartch wrote at ATR’s blog in response to French. “The Constitution is clear: a person or business must be physically present within a state’s borders in order to be taxed. By suggesting the Constitution is outdated, Internet tax pushers align themselves with the rhetoric of far-left judicial activists.”
In retrospect, we probably should have seen it coming. After Roberts’ first term, Jeffrey Rosen interviewed the new Chief Justice and wrote a long piece in The Atlantic analyzing his motivations.
Roberts’ stated focus was not his commitment to originalism or his oath to the Constitution, but pulling the Court to the middle to convey unanimity:
“A justice is not like a law professor, who might say, ‘This is my theory … and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area,’” he explained. Instead of nine justices moving in nine separate directions, Roberts said, “it would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”
“You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said. Roberts added that in some ways he considered his situation—overseeing a Court that is evenly divided on important issues—to be ideal. “You do need some fluidity in the middle, [if you are going] to develop a commitment to a different way of deciding things.” In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament.
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.