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.
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.
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.
Last year, the Supreme Court issued a decision that was devastating to ObamaCare’s opponents. In a ruling written by Chief Justice John Roberts, the High Court decided that the individual mandate, the very heart of the law, was constitutional under the taxing authority of Congress.
Article I, Section 7 of the Constitution — known as the Origination Clause — says, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” Therein lies the rub. The Affordable Care Act — also known as ObamaCare — originated in the Senate, which is unconstitutional.
With the help of the Pacific Legal Foundation, Matt Sissel, an Iraq War veteran, is challenging the constitutonality of ObamaCare on this basis. Over at the American Spectator, David Catron gives some details abut the case:
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.
I do not understand why so many liberals are cheering and whooping and hollering over last week’s SCOTUS decision on Obamacare. Perhaps it’s because Chief Justice John Roberts more or less rewrote the law to change the penalty into a tax. As we all know, liberals love to “tax and spend” (as long as its other people’s money.) We also know that they absolutely loathe big corporations, as we saw during Occupy Wall Street, as well as all the tax arguments that have been bandied about in order to deal with the deficit (not with Obamacare; that’s a whole ‘nother conversation.)
Yet, last week, Ed Morrissey noted something that should have all liberals crying about this law, rather than hooraying it:
After months and months of focusing on Anthony Kennedy as the weak link in the conservative chain at the Supreme Court, it turns out that Chief Justice John Roberts was the one the Right needed to fear. With the more centrist Kennedy dissenting, Roberts signed off on the individual mandate in ObamaCare, not as part of Congress’ power under the Commerce Clause, or even the ludicrous reference to the “Good and Welfare Clause” from some Democrats, but from the more mundane and substantial power to tax. The opinion actually ruled that the mandate violatesthe Commerce Clause, but as a tax that no longer matters.
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 narrative from some conservatives — including Erick Erickson, Jay Cost, Mark Tapscott, and George Will — is that Chief Justice John Roberts, who was part of the majority in last week’s decision to uphold ObamaCare under the Taxing Power of Congress, is playing a chess game instead of checker. In short, they seem to believe that Roberts has provided a political way for Republicans to use repeal of ObamaCare as they center-piece of their campaign this fall.
Rather than writing my initial thoughts Chief Justice Roberts on Thursday or Friday of last week while I was still trying to make sense of what the hell happened, I’ve spent the weekend reading the various takes on the case ranging from the understandably enraged to Roberts’ afformentioned apologists. My thoughts come down somewhere in the middle. I’m not going to call for Roberts to be impeached, but I’m not happy about the decision because it has provided another avenue for government to grow.
First, as you’re probably already aware, the Supreme Court has ruled that Obamacare is constitutional, and that the individual mandate is also constitutional, but not as how it was argued in Congress, but rather as a tax. So instead of the extremely dangerous Commerce Clause (which is really, really badly written) we have it surviving under Congress’ taxing power.
This is really just as bad. Although now technically, they can’t “force” us to buy things with Commerce power, the federal government now has absolutely no limits on taxing us. This is going to be 1775 all over again, except we can’t say “No Taxation Without Representation!” (unless we live in DC.)
The one silver lining that some are bringing up is that, because Obama campaigned hard on Obamacare and the mandate not being a tax, and now with SCOTUS saying “it’s a tax,” he’s going to be royally screwed come November. I have to agree with the results; I’ll defer to one of my friends who has this down:
— George Scoville (@stackiii) June 28, 2012
That is pretty much going to ruin Obama’s chances of reelection, especially with so many already up in arms over this (something like 55-60% wanted this law overturned?)
However, as another friend of mine points out, this is no silver lining at all: