First of all, it must be said and often repeated that elections have consequences.
People voted for representatives who voted for the monstrous piece of legislation that was Obamacare and the administration that rammed it through. Congress has and has always had the power to levy taxes; I do not know why anyone should be surprised that 1) liberals voted to raise taxes and 2) tax increases are constitutional.
During the day, Drudge Chief Justice John Roberts' smiling picture as his headline with the caption "TAKE YOUR MEDICINE!" It is awful medicine indeed.
Second, it is not the court's role to strike laws because they were passed by politicians that lied to the people about what they were really doing. The recourse for dealing with lying politicians has always been at the ballot box.
I do think that the American people have never been lied to so brazenly about a domestic public policy initiative in recent times as they were about this. One need only spend a few moments with a search engine to turn up literally scores of video clips of Democrats asserting--in a bald-faced lie laid bare by Chief Justice Roberts' opinion--that this was not a tax increase.
Third, it is probably true that the ruling of the court will soften public opinion about the law somewhat in the short term (and look for the media to tout polls asserting as much). However, elite opinion has insisted for quite some time that the law was constitutional and this did not make it any more popular.
Affirmation of the law's constitutionality (convoluted as it was in Roberts' opinion) by five elites in black robes seems unlikely to change many opinions in the longer term. People didn't like Obamacare before, and they have never liked taxes. Will they now like something they didn't like upon the revelation that it also contains Supreme Court-approved tax increases? I agree with Stuart Rothenberg that such an outcome seems unlikely.
Fourth, I agree with Legal Insurrection and do not think that conservatives should grasp at straws hunting for smaller victories in the Roberts opinion. There were four votes to strike down the law--indeed, dissenting Justice Anthony Kennedy (supposedly the moderate swing justice of the court) was said to be visibly angry while Roberts read his opinion--and a Republican-appointed ostensibly constitutionalist and conservative justice failed to vote to do so for whatever reason (sincerity in the reasoning of his opinion, outside pressure, or a desire to husband the public image of the court, or whatever else).
This is an onerous piece of bad public policy that greatly expands the power of the state over the lives of the citizenry of this country, and the record of this country when it comes to the rollback of government power (to say nothing of entitlements) is not a good one. I have no hopes that the outcome of the election in November will see the law repealed root-and-branch as a 5-4 vote the other way clearly would have done.
Perhaps John Roberts is playing a longer game. Playing chess, as Erick Erickson calls it. But this assumes that the board will be such that he can advance a longer game. Should we get another liberal justice, that will never happen. The chance to stop this expansion of Federal power and end this assault on individual liberty was now, not ten years hence.
Which brings me to my fifth thought, which is that the court decision is a short-term victory for Republicans, as they will likely benefit from the wrath of the electorate over this in November. Democrats, after all, are dancing for joy just as many voters realize they've been had and are now subject to the largest tax increase in American history.
In the longer term, the court's decision is a great defeat for this country. It shrinks individual liberty, enshrines bad public policy, worsens the country's fiscal situation, and relegates vast sectors of the nation's economy to direct or indirect state control.
What is bad public policy when it was passed did not become better simply because five people in black robes decided to rule it constitutional.
Sixth, the fact that Obamacare is ultimately unworkable and will collapse under its own weight should not encourage anyone. History is replete with countries that have suffered great hardship because their leaders (elected or otherwise) failed to make blatantly obvious and common sense, but difficult, choices. Look at Europe right now.
Seventh and finally, if you want to feel encouraged (and I don't find it particularly encouraging, but you might), I invite you to read this piece by Sean Trende, which compares this ruling to the ruling in Marbury v. Madison, in which the chief justice outwitted a power grab by another president, trading a short-term defeat for a long-term victory.
And here's where I come back to my first point.
Who we elect matters.
There's an election coming.
It's time to get to work.
Thursday, June 28, 2012
From the dissent:
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
National Review's editorial today says a lot:
In today’s deeply disappointing decision on Obamacare, a majority of the Supreme Court actually got the Constitution mostly right. The Commerce Clause — the part of the Constitution that grants Congress the authority to regulate commerce among the states — does not authorize the federal government to force Americans to buy health insurance. The Court, by a 5–4 margin, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.
What the Court has done is not so much to declare the mandate constitutional as to declare that it is not a mandate at all, any more than the mortgage-interest deduction in the tax code is a mandate to buy a house. Congress would almost surely have been within its constitutional powers to tax the uninsured more than the insured. Very few people doubt that it could, for example, create a tax credit for the purchase of insurance, which would have precisely that effect. But Obamacare, as written, does more than that. The law repeatedly speaks in terms of a “requirement” to buy insurance, it says that individuals “shall” buy it, and it levies a “penalty” on those who refuse. As the conservative dissent points out, these are the hallmarks of a “regulatory penalty, not a tax.”
The law as written also cuts off all federal Medicaid funds for states that decline to expand the program in the ways the lawmakers sought. A majority of the Court, including two of the liberals, found this cut-off unconstitutionally coercive on the states. The Court’s solution was not to invalidate the law or the Medicaid expansion, but to rule that only the extra federal funds devoted to the expansion could be cut off. As the dissenters rightly point out, this solution rewrites the law — and arbitrarily, since Congress could have avoided the constitutional problem in many other ways.
The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. The latter is what Chief Justice John Roberts has done. If Roberts believes that this tactic avoids damage to the Constitution because it does not stretch the Commerce Clause to justify a mandate, he is mistaken. The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.
The Court has failed to do its duty. Conservatives should not follow its example — which is what they would do if they now gave up the fight against Obamacare. The law, as rewritten by judges, remains incompatible with the country’s tradition of limited government, the future strength of our health-care system, and the nation’s solvency. We are not among those who are convinced that we will be stuck with it forever if the next election goes wrong: The law is also so poorly structured that we think it may well unravel even if put fully into effect. But we would prefer not to take the risk.
It now falls to the Republicans, and especially to Mitt Romney, to make the case for the repeal of the law and for its replacement by something better than either it or the health-care policies that preceded it. Instead of trusting experts to use the federal government’s purchasing power to drive efficiency throughout the health sector — the vain hope of Obamacare’s Medicare-cutting board — they should replace Medicare with a new system in which individuals have incentives to get value for their dollar. Instead of having Washington establish a cartel for the insurance industry, they should give individuals tax credits and the ability to purchase insurance across state lines. Instead of further centralizing the health-care system, in short, they should give individuals more control over their insurance.
Opponents should take heart: The law remains unpopular. Let the president and his partisans ring their bells today, and let us work to make sure that they are wringing their hands come November.