The Supreme Court, Obamacare, and the Future
June 28, 2012 16 Comments
Ok, I’ve had a bit of time to reflect (and read) on the decision now. I figured out quite a while ago that lawyers use words in such strange ways that you need one to translate, so I was waiting for Dan Miller, and I’m nobodies political strategist, so I lean on others.
If I’m reading this right, The Court put a limit on the Commerce clause today, that’s good, not as good as overturning Wickard, but good. In addition they told the administration that if they want to raise taxes for healthcare they could but, it would be explicity be a tax, one of the largest tax increases in history.
From Dan Miller in Panama
Supreme Court Holds ObamaCare Individual Mandate Unconstitutional.
BUT unexpectedly upholds ObamaCare 5:4 as permissible under the taxing authority granted to the Congress by the Constitution. Chief Justice Roberts sided with the librul wing of the Court and wrote the majority opinion. Justices Kennedy, Thomas, Scalia and Alito dissented,
opining that the entire law should be struck down.
The individual mandate . . . 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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate.
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (Emphasis added, internal citations omitted.)
My preliminary reaction is that Chief Justice Roberts’ majority opinion is contrived nonsense; my horse indicated that he agrees with my preliminary assessment.
And that brings us to Justice Roberts motives. The best read I’ve seen so far seems to come from Erik Erickson of RedState.
First, I get the strong sense from a few anecdotal stories about Roberts over the past few months and the way he has written this opinion that he very, very much was concerned about keeping the Supreme Court above the partisan fray and damaging the reputation of the Court long term. It seems to me the left was smart to make a full frontal assault on the Court as it persuaded Roberts.
Second, in writing his case, Roberts forces everyone to deal with the issue as a political, not a legal issue. In the past twenty years, Republicans have punted a number of issues to the Supreme Court asking the Court to save us from ourselves. They can’t do that with Roberts. They tried with McCain-Feingold, which was originally upheld. This case is a timely reminder to the GOP that five votes are not a sure thing.
Third, while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach. In so doing, he has affirmed the Democrats are massive taxers. In fact, I would argue that this may prevent future mandates in that no one is going to go around campaigning on new massive tax increases. On the upside, I guess we can tax the hell out of abortion now. Likewise, in a 7 to 2 decision, the Court shows a strong majority still recognize the concept of federalism and the restrains of Congress in forcing states to adhere to the whims of the federal government.
Fourth, in forcing us to deal with this politically, the Democrats are going to have a hard time running to November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them a vote for keeping a massive tax increase, let them try.
Read the entire RedState Article here.
So there is plenty of fodder here for politics. If Mitt Romney is more than a weathervane he should be able to put up a lot of hay with this. We’ll see.
It needs to be repealed in its entirety but, that’s not going to happen in this Congress, so start working on it.
If you are interested, here is the direction I think we should proceed in. Repeal and Deregulate
- Vid: Wheat, Wheat, & Obamacare – How the Commerce Clause Made Congress All-Powerful (reason.com)
- Supreme Court will Uphold Affordable HealthCare Act (wallstreetpit.com)
- Scalia Changes His Tune on Wickard and the Commerce Clause. Will It Matter for ObamaCare? (txwclp.org)
- What’s Being Argued Today — A Summary for Layman (ken_ashford.typepad.com)