Lemons and lemonade: Obamacare (Pssst! Bring your own danged sugar!)
Obviously, I wish the Supremes would have done our grandchildren a huge favor by eviscerating this monstrosity ….but one of the greatest features of the internet is seeking points of view of others with better insight. Let me open the Obamacare lemonade stand and see what silver linings portend:
1. Courtesy of Future of Capitalism. Juicy, tart lemon parts bolded for each opinion piece.
There are already some voices on the right of center angrily denouncing Chief Justice Roberts as a turncoat. I actually think he probably made the right call. Not only for the legal reasons (the mandate, after all, is a tax, because the penalty for being uninsured isn’t being thrown in jail or being deported but paying a tax), but because in the end it may well be better for the country for these decisions to be made through the political process rather than by a group of nine robed graduates of Ivy League law schools in a non-televised proceeding. Look at how Roe v. Wade polarized the abortion debate by taking it out of the political compromise and debate realm and placing it into the Constitutional law realm. A similar move by the court on the health care mandate might have had similar deleterious effects.
2. Courtesy of J. Christian Adams:
The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.
That is lock, stock and barrel the argument that conservatives have been making and liberals mocked. Roberts reminds us: “Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”
Roberts also gave the back of the hand to liberals’ argument that the ”necessary and proper clause” does something more than the Commerce Clause. (“Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”)
In short, we are a government of enumerated powers, and the Commerce Clause is not a free pass to do whatever Congress pleases.
On the taxing power, Roberts put great weight on what the Obama lawyers said, rather than what was written in the law. He wrote: “It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.’ ” It cited the fact that the IRS is going to collect the payment as evidence it is a “tax.”
Obama Wins the Battle, Roberts Wins the War
The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.
Romney raises over $100,000 in less than an hour after SCOTUS ruling; Update: RNC says now over $1 million
Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.
Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived. The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Did Roberts just give Obama the bird? (Go sample the lemonade at Club Anchoress)
Is Roberts playing Bridge?
By correctly classifying the funding vehicle as a tax, he has played a card that exposes the liberal reality and invites a response from Congress as well as the electorate.
By acknowledging that the *electorate* is responsible for its political choices and therefore its politicians and therefore, ultimately, its laws, and by making it clear that bad law and bad policy may not, in fact, violate the Constitution, since the Constitution was not written with the explicit injunction that “legislators may not write stupid laws,” he plays the card that clarifies the path to eliminating not only the heinous Health Care Sabotage machine, but also the fools and crooks who gave it to us.
Roberts is looking across the table at us now.
After reading and stewing about it all day, I’ve concluded that what Roberts has done is fundamentally shift the constitutional debate away from the liberal assumption since the Woodrow Wilson era that an Imperial Presidency and supine Congress can pretty much do as they please so long as it’s covered by at least one of those fig leaves known as the General Welfare, Necessary and Proper or Commerce clauses of the Constitution.
The new assumption is, thanks to Roberts, that at least two of those clauses in fact cannot simply be dragooned into the service of whatever a passing majority in Congress wants to do. And having shifted the meaning of those two clauses, courts will likely now have to view the other clause differently as well.
In other words, the Constitution means something today that it didn’t yesterday, at least in terms of constitutional precedent. It’s not a grand rout of liberalism from the field of battle, but the correlation of constitutional forces has now shifted under their feet in such a way that they must go over to the defensive on ground not of their choosing.
At the same time, he (Roberts) dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. He compared the decision to Marbury v. Madison, where Chief Justice John Marshall surrendered in the case before the court while firmly and eloquently reasserting the Court’s right and responsibility to engage in judicial review; and Reynolds pointed to one crucial fact: Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.
Conservatives won a substantial victory Thursday. The physics of American politics — actions provoking reactions — continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John G. Roberts Jr.has served this cause.
The health-care legislation’s expansion of the federal government’s purview has improved our civic health by rekindling interest in what this expansion threatens — the Framers’ design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
That’s all for today. Going to hit the beach, y’all.