United Liberty

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.

In reaction to my post yesterday, and lots of other punditry around the web, my friend Rusty Weiss of Mental Recession fame (he recently celebrated six months of blogging!) emailed me to say he’s tired of having to settle for silver linings — that he want points on the board.

A lot of us — political activists, policy geeks, and court watchers alike — were disappointed with the outcome of yesterday’s ruling. We wanted a full takedown of Obamacare, for both substantive and political reasons. Instead, we got a ruling that the president’s signature legislative achievement passes constitutional muster, even if it was most peculiarly reasoned.

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:

SCOTUSblog reports that the Supreme Court has upheld the individual mandate and the rest of Patient Protection and Affordable Care Act, though the “federal government’s power to terminate states’ Medicaid funds is narrowly read.” Writing for the majority, Chief Justice John Roberts explains that the individual mandate is a tax.

The decision is certainly interesting because Solicitor General Donald Verrilli argued that the individual mandate wasn’t a tax back in March. And that was an argument with which members seemed to agree.

Stay tuned for a link to the opinion and further updates.

[10:22am] SCOTUSblog notes that Roberts’ vote, not Kennedy’s, saved ObamaCare. It was 5 to 4 decision.

[10:24am] Based on what we know right now, the implication is that the Commerce Clause was not expanded as a result of the decision. But we can’t say for sure until we see the opinion of the court.

[10:26am] Remember when President Obama said the mandate wasn’t a tax.

[10:27am] The Commerce Clause is untouched by the opinion. The majority only ruled the mandate constitutional as a tax, via SCOTUSblog: “Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.”

[10:49am] And here is the opinion.

As you know, the Supreme Court did not rule yesterday on the Patient Protection and Affordable Care Act. Many observers speculated that they would not rule on the Arizona immigration case and ObamaCare on the same day. Everyone is now looking to Thursday, which is the last day the Supreme Court will deliver opinions for the current term.

The thinking right now is that Chief Justice John Roberts will write the majority opinion, which leads opponents of ObamaCare to believe that, at the very least, the individual mandate will be struck down. Sen. Mike Lee (R-UT), who clerked for Justice Samuel Alito, is among those that express this thinking, as noted by Philip Klein:

Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, said that if Chief John Roberts writes the majority opinion in the health care case, as some have speculated, it would make it “substantially more likely” that the Supreme Court would strike down the individual mandate.

Following the release of today’s decisions, SCOTUSblog’s Tom Goldstein suggested that the decision on the constitutionality of President Obama’s health care law would “almost certainly” be written by Roberts, based on the authorship of recent opinions.

“It certainly would not surprise me,” Lee told the Washington Examiner, standing outside the Court after this morning’s opinions where handed down. “It would not be unusual for a Chief Justice to assign to himself a decision of monumental importance. This certainly fits into that category.”

In an interview with ThinkProgress, Congressman Allen West indicated that he was “fine” with keeping some key provisions of the Patient Protection and Affordable Care Act:

…West pointed to three popular provisions of the health care law that he would like to see preserved: allowing parents to keep children on their health insurance plans until 26, ensuring that people with pre-existing conditions aren’t denied insurance, and closing Medicare’s prescription drug donut hole…

West is just another Republican walking in line after Majority Leader Eric Cantor expressed his desire to retain some of the same aspects of President Obama’s landmark legislation.

Ostensibly, Republicans have no plan of their own for health insurance reform nor are they serious about freeing up the market. Instead, they are campaigning against the individual mandate in PPACA while piggybacking on some of the less unpopular provisions of the Act. This serves as a great reminder that Republicans do not have any inherent opposition to government intervention, only government intervention with a Democratic authorship. Despite campaigning for the repeal of ObamaCare since its passage two years ago, Republicans are promising to implement a meekly watered down version of the same thing.

The case against the Patient Protection and Affordable Care Act (PPACA) — what we often refer to as ObamaCare — is in the books. Members of the Supreme Court will cast their initial votes today than begin their deliberations, issuing their rulings — likely in four parts — at the end of the term in June.

It’s hard to make predictions about which way a majority of the Supreme Court, particularly Justice Anthony Kennedy, is going to go on the individual mandate and severability. But as has been noted by Jim Antle and Stephen Richer, many legal pundits never took the case seriously and now seem out-of-touch due to how close the end result is likely to be, no matter whether liberty prevails or statism hacks away another limited government principle from the Constitution.

Admittedly, I wasn’t going to write any predictions about the case simply because I don’t want to get my hopes up. But over at the National Review, Daniel Foster has given his predictions based on what we read and heard from oral arguments. He believes the Supreme Court will overturn the mandate, but split on severability, which he says will lead to “Chief Justice Roberts ask[ing] one of the liberal justices to write the operative opinion as a way of extending an olive branch.”

So with that, here are my predictions. I really hope I’m not let down, but I wouldn’t be surprised to see the court go the opposite way on severability. I think there is just too much concern in the mind of Justice Kennedy to sign off on the individual mandate.

For the last few days the Supreme Court has listened to a case in which they have been asked to decide the constitutionality of the individual mandate of the Affordable Care Act.

This case is not about health care. It’s not about lowering premiums or rectifying the problem of the uninsured shifting healthcare costs to the insured, it’s not about increasing access to health care. It is simply a debate between whether or not the federal government is adhering more to the principles of individualism or collectivism.

The individual mandate is based upon the principle of collectivism which is the opposite of the principle of individualism,which the federal government was originally founded upon. But over the course of the last 225 years after the Constitution was ratified more and more laws have been passed that were based upon the ideas of collectivism and most have been upheld as “constitutional” by the Supreme Court.

Ayn Rand wrote in her awesome essay, Textbook of Americanisms, that “Individualism holds that man has unalienable rights which can not be taken away from him by any other man, nor by any number, group or collective of men. Therefore each man exists for his own sake and not for the sake of the group.”

On the other hand the Individual Mandate which forces every American to purchase a product is based upon the ideas of collectivism because it’s the majority who are using the force of Government to coerce individuals to act in a certain way.

In Textbook of Americanisms, Ayn Rand explained what the principle of collectivism really boils down to:

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.