Given that I have been extremely busy lately with my law work, I haven't had time to keep up on my blog. However, I would like to share my thoughts on the Supreme Court's ruling on ObamaCare today. I'd like to my observations about Chief Justice John Roberts which will help me unpack my thoughts on ObamaCare.
Many people on both the Left and the Right are surprised that Chief Justice Roberts joined the majority in upholding ObamaCare. While the Left is overjoyed with him, the Right are not only surprised by his position but there seems to be a bit of a mystery as to when he decided to uphold ObamaCare. For me, I'm not interested in solving that mystery and quite frankly I don't care when or why he switched.
What I do care about is the impact of his decision on our country. I haven't read the entire decision yet (I'll probably get around to it this weekend) but unlike other conservatives, I am happy with the fact that he joined the majority in upholding ObamaCare. Let me explain why.
Prior to the ruling conservatives were worried that if the Affordable Care Act (ACA) was held constitutional, then it would give Congress unlimited regulatory power. But by holding that ObamaCare as unconstitutional under the Commerce clause of the U.S. Constitution, he has halted the expansion of that power and has now set the stage to shrink the Commerce Clause back to its proper constitutional boundaries:
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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
Chief Justice Roberts may have made a smart and crafty move by giving Obama limited political victory while holding that ObamaCare is unconstitutional under he Commerce clause, the Necessary and Proper Clause or the Spending Clause.
When I say that Chief Justice Roberts gave Obama a political victory, its a limited victory and its a win that may not last very long. In fact, I believe that Roberts intentionally and cleverly designed it to be a short term victory by holding it to be a constitutionally valid exercize of Congress' power to tax:
Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.
How short could this victory be? It could be less than a month.
House Majority Leader Eric Cantor (R-Va.) has promised to hold a vote on July 11th to repeal ObamaCare after Congress gets back from its July 4th recess. House Speaker John Boehner is also behind the effort to repeal this law as quickly as possible. But a full repeal is not likely to happen. The vote to repeal it will certainly pass in the House where the Republicans are a majority but not in the Senate where Democrats have a slim majority.
The victory could come as short as 130 days when America goes to the ballot box to decide to either keep the current President or get a new one. As Mitt Romney explains it, the only way to repeal ObamaCare is to get rid of Obama. Mitt Romney has repeatedly promised that he will repeal ObamaCare on his first day in office.
However, voting for Mitt Romney to be our new President won't fully repeal ObamaCare. We need a Republican majority in both houses of Congress. We already have a Republican majority in the House and we need to keep that majority in 2012. We also need to make the Democrats a minority in Congress by getting as many Republicans in the Senate as possible.
But lets get back to small victory that Chief Justice John Roberts gave to Obama. By limiting the constitutionality of ObamaCare to Congress power to tax, he's has laid the groundwork for Congress to repeal it very easily. Congress can do whatever it wants with taxes. They can raise taxes, lower taxes or eliminate it all together.
Nancy Pelosi famously told the American people that we had to pass ObamaCare to find out what it is in it. Republicans charged that the federal individual mandate was a tax and Obama denied that accusation.
Americans hate taxes. And they also hate ObamaCare just as much. And that's a lethal combination, especially for an incumbent President running for reelection.
Americans will not be happy to find out that the Democrats lied to them for denying it was a tax and the Supreme Court did what Nancy Pelosi asked the American people to do by looking what is in the law and Congress passed the law only to find out that it was...another tax increase on the American people. That means that 26 million people or roughly around 70-75 percent of the people who make less than $200,000 a year, will now be paying a new additional tax which is estimated to be a $1.7 trillion tax over the first decade.
If you think about it, declaring ObamaCare as constitutionally valid tax increase is such an intelligent yet simple and elegant way of repealing ObamaCare since he properly placed the responsibility of repealing it back to Congress (where it should belong) and the American people.
Thus, Obama's victory is a limited and hollow one since Roberts is essentially saying that Obama is a tax loving Democrat which leaves nothing really good for the President to cheer about during the election season:
Republicans would have preferred the court overturn the health care bill, an act that would have underscored Obama's biggest liability -- the perception among voters, including those who like and trust him, that he has been ineffective.
But you can count on them to use Roberts' bill-saving justification to label Obama a tax-and-spend liberal.
"I'm sure they'll nail us on taxes and I'm sure it will work," said a senior White House official speaking on condition of anonymity. "But, given the alternative, that's a bitter pill I'm ready to swallow."
By upholding ObamaCare, Obama's victory is a short lived victory for the President since it leaves him in an politically uncomfortable position for the rest of the election year and may end up costing him his job:
Obama is boxed in. What is he to do? He can't criticize the Court for judicial activism, as it upheld the law (putting aside the way the Court limited the Medicaid provisions, which are not particularly salient to voters). The decision undercuts a potential theme of his campaign -- that a conservative Court is out of control. And yet Obama can't trumpet the decision either, since it states that Democrats overreached in trying to justify the law under the Commerce Clause.
Worse yet, it calls the mandate something that Democrats didn't want it to be: a tax.
Conversely, the decision may be the optimal result for Mitt Romney. If the Court had struck down the mandate, it would have taken off the table an issue that Republican base voters care tremendously about. But in upholding the law, the Court didn't just leave that issue on the table; it gave Romney tremendous ammunition he can use to criticize Obama as a tax raiser.
There was much contrarian wisdom floating around prior to the decision about how a defeat might be helpful to Obama, as he could run against the Court. Jeffrey Toobin criticized this as "nonsense": "Winners win, and losers lose." We'll never know if Obama could have potentially won by losing the health care case. But the coming months will tell whether he might have lost by winning.
In the end, Chief Justice John Roberts did the right thing by joining the liberal 5-4 majority by working within the system to engineer the eventual demise of ObamaCare.
This article was cross-posted from the blog Conservative Samizdat.
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