United Liberty

Two weeks ago, I wrote not one, but two posts about how conservatives had basically foisted Obamacare upon the populace. About how conservatives wanted libertarians to join them again, and vote for a conservative…who wrote Obamacare. About how conservatives had lost any sense they principles they had.

This is an addendum.

Since the end of World War II, libertarians and conservatives have been allied in a loose coalition known as “fusionism.” The idea was that, as communism and social “democracy” was on the rise, anyone who believed in free markets had to ban together, at the expense of other ideas. It originally began with Frank S. Meyer, an American philosopher, who believed that libertarian free market concepts worked hand in hand with conservative traditionalism.

However, it has become clear to me, and to growing numbers of libertarians, that this is false. That the entire fusionist experiment was really born out of necessity, not principled ideology, as a way to survive the Cold War. And especially the last few years have shown, the conservative “movement” has come utterly unhinged.

The birthers. The Kenyan anti-colonialist crap. The accusations our president is a secret Muslim. The now ludicrous defenses of bigotry against homosexuals, transgendered, and those who do not believe. And then there is the vehement and heated arguments against spending…but on the same front, conservatives themselves spend and spend and spend. They just want to spend a tad less than liberals.

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…

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.

The Romney campaign has been bragging to every outlet they can about the amazing $4.6 million haul they took in yesterday in the wake of the Supreme Court’s decision upholding the individual mandate.

The fact that Romney was able to so immediately and succesfully capitalize on the Supreme Court’s decision is a stark reminder that a sucker is born every minute.

The swing vote in the landmark Obamacare decision was that of Chief Justice John Roberts.  Roberts wrote the opinion that grants the federal government almost limitless power via the taxation clause.  Even worse, and most frightening, this decision provides a roadmap for future Congresses and future Presidents to end run any lip-service limitations the Court provided to the limits of the commerce clause power or any other supposedly “limited” power of the federal government.  And don’t even get me started on the 9th or 10th amendment, because apparently neither of those amendments exist any longer.

According to Mitt Romney, Chief Justice Roberts, now enemy number one to many conservatives and constitutionalists, is EXACTLY the kind of justice he would nominate if elected President.

Romney’s own website continues to say that he will appoint justices like Chief Justice Roberts (you would think his crack team of consultants would have scrubbed this by now).

Indeed, not only is Romney promising to nominate justices like Roberts, he has been effusive in his praise for Bush nominess like Roberts:

I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs.

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.”

While the U.S. Supreme Court keeps everyone in suspense about when the ObamaCare decision will be announced, it is important to prepare for what happens next. A recent Associated Press poll shows that just ⅓ of Americans support the new law, with only 21% of independents approving. Another poll shows that a majority of former U.S. Supreme Court law clerks believe at least the individual mandate will be struck down.

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.