Second and third thoughts about the ObamaCare decision, which does have some saving grace

I was driving along in the car and, suddenly, the phrase “Roe v. Wade” popped into my head.  In 1973, the Supreme Court waded into what should have been a state-by-state legislative matter, and created the most vicious 39 year fight in America since the Civil War.  One side found the decision completely invalid, while the other side became so invested in its validity that it almost became a one-issue party — and, moreover, a one-issue party that became ever more extreme in its defense of its victory.  By parsing the decision as he did, Justice Roberts prevented another American civil war.

When I returned home and turned on my computer, I discovered that Charles Krauthammer was thinking along the same lines.  If I’m in sync with Krauthammer, I’m clearly in good company.

Krauthammer’s view is that Roberts wears two hats.  The first hat is the constitutional conservative, which kicked in to prevent him from allowing a vast expansion of the Commerce Clause.  The second hat is as the Supreme Court’s custodian.  That second hat requires Roberts to protect a Court that’s been under a shadow since the decisions in Roe v. Wade (favoring the Dems) and Bush v. Gore (favor the Republicans).  So, after wearing his conservative hat to deal with the Commerce Clause, Roberts still had some work left to do:

That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the Court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger Courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5–4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the Court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5–4 decision split along ideological lines that might be perceived as partisan and political.

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the Court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

I think Krauthammer’s analysis is correct.  Roberts didn’t rule as he did because of his seizure medicine or because he was blackmailed.  He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere.  The American voters, by putting Democrats into Congress and the White House, broke the American system.  They now own that broken system and it’s up to them to fix it.  In this case, if the voters are smart enough, they’ll elect Republicans by a large majority.  If they’re not smart enough, we’re in for a lot more breakage.

Viewed this way, Roberts did the right thing.  He protected the Supreme Court’s integrity and he made the American people responsible for their own stupidity.

The best bet for the coming months is that Obama’s base will go home happy, and that he will not be able to rally them for the election.  They’ll be like the person who ate too much at dinner and sits there in a stupor, even as the roof falls on his head.  Unfortunately for Obama, Romney will be able to rally his base.  If you thought 2010 was the year of the Tea Party, wait until you see the summer of 2012.  Like 2012, Tea Partiers are up in arms; and unlike (and better than) 2012, this time they’re already organized with mailing lists, data bases, and vast amounts of political and protest experience.

Even better, after Americans suffered through months of the drug-addled, filthy, violent Occupy movement, the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals.  This summer, the Tea Party will have traction, especially because the Supreme Court, in ruling in Obama’s favor, put a name on Obama’s conduct:  taxes on the middle class.

That’s all good.  What’s bad is that, as I noted in my original post on the subject, the Supreme Court has managed to allow taxes to have the scope of the Commerce Clause:  From this day forward, Congress can not only tax activity, it can also tax inactivity.  Long after Obama is gone from office, that legacy will remain.  The only saving grace is that taxes require simple majorities.  Easy come, easy go, one might say — except that taxes never go away easy, do they?


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  • 11sunflower

    And another terrific post with insight!  We conservatives MUST get out the vote this fall!

  • debiesam

    Justice Roberts hasn’t prevented another civil war. He’s sparked it. In Roe v. Wade, a liberal court ruled without any evidence that the Constitution grants the right to privacy. This so-called right, as it pertains to abortion, was invented by the court. In today’s ruling, the liberal justices ruled without any evidence that the Constitution allows the government to mandate the purchase of insurance by “taxing” a person for failure to buy it. If ever there was a convoluted argument, this is it. I think Roberts has done a great deal of damage. He has acted very much like the Burger court, pushing through an argument that has no grounding in the Constitution. I don’t think there’s any positive way to spin this. He sacrificed a truly sound Constitutional argument for political expediency and political reputation. But what good is that reputation if a very bad law, setting very bad precedent, has gone through?  

  • Ron19

    “…the media is going to find it impossible to paint clean, polite, educated, employed Tea Partiers as crazed radicals”

    Why not?  They’ve already done this, they know how to do it.

    The media has a history of saying whatever they want, whenever they want, for their own reasons. 

    The media is not bound by integrity or even reality.

  • Earl

    Much as I admire Charles the K, his argument in this case is bullfeathers.
    Striking down this clearly unconstitutional law would NOT have removed health care planning from the legislative sphere — the Congress would simply have had to start over to craft a plan that didn’t violate our founding documents.  Of course, striking it down would have meant that John Roberts would never get invited to another Capitol Hill cocktail party, and all of his liberal friends would cut him dead whenever he was in their presence….forever.  I suspect that it is this that influenced him far more than any calculus of legislative prerogatives and SCOTUS reputation.
    And how can anyone spin his flat contradiction of the very people who wrote the law on whether the mandate is a tax or not?  How is it offering ANY respect to the legislative branch to tell them, in effect, “You don’t know what you’re talking about — this is a TAX, levied on anyone who doesn’t do what the federal government tells them to.  And therefore, it’s constitutional.”  Please.
    Under that standard, a pregnant woman could be told that the government wishes her to carry her pregnancy to term, and if she decides not to (her right of course), she will be taxed.  How do you think the lefties will react to THAT?  But, what rational objection can they have on principle?

  • BrianE

    Here’s what Robert’s had to say about Congress taxing authority:

    There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something. 

    Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.

    Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one. 
    This is not an expansion of the tax power. The fact that Congress tried to obfuscate the nature of the “penalty” speaks to the political nature of the bill– that Americans feel they have been taxed enough. 

    In my opinion, the real issue here is the minimal tax imposed for not purchasing health insurance, or in the case of businesses employing over 50 persons, not offering health insurance benefits. Since Congress restricted the right of insurance companies to disallow pre-existing conditions, it makes sense to pay the tax or in the case of a company pay the fine and then buy insurance when the need arises.

    I believe this will make it nearly impossible for insurance companies to remain in the health insurance market without large increases in premiums, which will drive more people to paying the tax until they need insurance. It appears to me this is a feature, not a bug, if you’re a proponent of single payer, since some time in the future the government insurance option may be the only choice left to the individual.

    If Congress was sincere about using the private market as the vehicle for coverage, they would have made the tax more of a burden (closer to the cost of premiums) and had at least a minimal look-back provision to prevent individuals from gaming the system. But apparently they didn’t.

  • debiesam

    Brian E, I think it’s obvious why Congress didn’t set the tax closer to the cost of premiums. Obama has given that reason when he’s talked to private groups. His ultimate goal is a single-payer system. How does he get there? By forcing people out of the private insurance market, which would force private insurance companies to go bankrupt. That would leave only one alternative: government. It’s a very sinister plan. We have to get him out of office, or we’re cooked. 

  • BrianE

    “He sacrificed a truly sound Constitutional argument for political expediency and political reputation. But what good is that reputation if a very bad law, setting very bad precedent, has gone through? ” – debiesam

    Roberts pointed out that it’s not the Courts duties to prevent bad laws from being enacted, only ones that violate the constitution.

    There is a remedy to lessen the impact of the bill. Elect a solid conservative Congress and a conservative President. We have an opportunity to at least do one of those– and Romney has pledged to work to overturn the law (he made it clear that there will be an alternative).

    Let’s be practical though. Insurance works only by using a pool of money from which only a few claims are made. The larger the pool, the lower the premiums. We need to encourage everyone to purchase health insurance (at minimum, catastrophic). Liberal demagogary aside, the idea of tax credits for the express purpose of buying health insurance makes sense (I think that’s part of the Ryan plan). 

     Insurance companies, unlike the federal government, can’t just borrow the money– which is what we are doing with Medicare currently, since Part B premiums only cover 25% of Medicare costs– the rest is made up by general revenue funds (which currently is all borrowed money– money that will never be repaid and that young people will pay interest on the rest of their lives in the form of higher taxes.

  • BrianE

    We have to get him out of office, or we’re cooked. – Debiesam

    There you are, a political solution. 

  • debiesam

    Here’s where I disagree with you, Brian. I think that this very bad law does violate the Constitution, and I have plenty of company. As the Wall Street Journal pointed out this morning, “Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments. The Chief Justice in effect revised the statute in order to find it constitutional.”

  • jj

    He ruled this way because, perhaps rightly, he was keeping a legislative problem in the legislative sphere.   Then say so.  The court isn’t obligated to run its collective mouth on everything  brought before it.  Simply saying: “out of our area;” or “this properly belongs top the legislative branch;” or even “we hath not the competence” is perfectly permissible, and may even be the right answer.
    We’ve spent a whole day now trying to find excuses for Roberts on this one.  Stop it.  Time to stop.  He had his Dred Scott moment and fell on his ass. 

  • JKB

    Seems to me, Roberts has also told America it is time to grow up. No more vote for whomever and let the Court keep them honest. Elections matter and it’s time for the citizens to suck it up, be adults and take responsibility for those they elect. If Congress and the President do something so unpopular as the mandate, then it is up to the electorate to fix the problem by roasting the politicians until they feel the heat. We don’t need better politicians, we just need to make the ones we have make better choices by fear of unemployment.

    Not the best scenario for the Dems. The Tea Party is already called to arms. The Dems who were hoping to dissemble about the mandate now have it proclaimed throughout the land, IT’S A TAX.

  • debiesam

    I agree with jj. Let’s stop making excuses for Roberts. He showed his true colors with the immigration decision just three days prior. It’s scary to contemplate, but I think we have a court with 3 conservatives and 2 swing voters.

  • debiesam

    As for telling America it’s time to grow up, please. Chief Justice Roberts should grow up. Let’s remember that Obamacare was passed with a great deal of deception, arm-twisting, back-room deals, and outright ignoring of the people’s will. People made a mistake in voting Obama in. But, really, most people did not ask for Obamacare. It was rammed down our throats. The courts are supposed to be the last resort to stop something that was passed dishonestly. But Roberts is saying, “Now, now, you should have known … Too bad for you.”

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  • groman

    I’m in total agreement with Ron19. Tell a lie big enough and often enough and the people will accept it as the truth. BO’s taking over of GM to pay back his union buddies while screwing the shareholders? Oh yeah, that was perfectly fine and GM is doing better than ever. BS. They still owe the taxpayers money. Solyndra ? What’s that? Tea Partiers ? Oh yeah, they’re those racists who just hate Obama and are trying to turn America into a fascist nation. It’s those Occupy people who are the ones fighting the greed of Wall St., trying to help the little guy.  Face it. The media in this country is the PR dept. of the Left, which means the Democrat party. Between now and election day it will be all about denigrating Mormans, Romney, Republicans and painting BO as the poor guy who got stuck trying to clean up the mess that the dastardly George W. Bush left behind. Even though Obama is the smartest man in the universe, it’s more than even he can do in four short years. We just have to give him another four to finish the job. Want to bet he gets at least 50% of the vote ?

  • Mike Devx

    I’m not a scholar on Justice Roberts, but I have paid attention enough to have fundamental respect for him.

    I’ve been to busy to read the decision, and hoped to read it this weekend.  Brian E, above, gave me the key information I was looking for in Roberts’ arguments on why ObamaCare could be upheld as a tax, and ONLY as a tax.

    Justice Roberts has a long history of commentary on the Commerce Clause, and in this decision he has done it again.  Roberts has appeared to be on the warpath against abuse of the Commerce Clause his entire adult life.  When it comes to taxing inactivity, he’s made his position clear: “Yes, the government can do so, because it has always had broad power to tax, and my Cautious Court will always grant the legislative branch its broadest accepted authority under the Constitution. But when it comes to the Commerce Clause, I’m putting my foot down, period.”

    I love the argument made on another blog today: If the government can tax this, the government can tax you for NOT buying a gun.  So all you people without guns, we’re going to make you pay a “tax” every year you continue to not own a gun, for not exercising your constitutional right to own one.  Why?  Because it’s important to us, that’s why, and the legislative branch has broad authority to tax.  So there.

    As much as I detest what Congress has done, it would warm my heart to welcome THAT one.  Though I suspect in the end it would be as bad a choice as this Obamacare chooice.  I *can* accept this Roberts decision as being Constitutionally valid.

    The only plus I can see to this is that Americans understand taxation and generally don’t like it, in a way they don’t understand the arguments over the Commerce clause.  It’s easier to fight tax law than it is to fight Commerce law.  But now we are bound under Obamacare, and there’s no way to characterize that as a conservative victory.


  • Ymarsakar

    Meanwhile, Holdern’s been voted in contempt of Congress. Nothing happens to him of course, because he has political backing. We don’t. This nation has turned into an oligarchy because a Bunch of Americans didn’t have the guts to kill evil while it was still charging up. Now we have this.

  • Ymarsakar

     ” We don’t need better politicians, we just need to make the ones we have make better choices by fear of unemployment.”

    Did you check to see what job Chris Dodds has? The thing is, he isn’t unemployed, yet he doesn’t hold political office. Kicking politicians out of office increases their paycheck, which is the problem.

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