However, sympathetic though we are to these admittedly weighty fears of increased state power, we think one fact may have been a bit obscured by this response – this is still a decision by John Roberts. And John Roberts is still a Bush appointee, with a judicial philosophy that makes hardcore judicial liberals cringe, albeit a little less now. As such, since the decision was released, a steady drumbeat of commentary has gone up from everyone from Reason Magazine to Charles Krauthammer to Erick Erickson to George Will to even Ken Cuccinelli, one of the people who lost in the case, claiming the decision might be a sleeper victory. With a list of people like that believing they’ve secretly won, we figure we owe it to them to at least try to sum up the case for the Obamacare case being a success. Here are the top five reasons we can see why the Obamacare case might come back to haunt the Left and make the Right cheer:
#5. It made taxation the panacea for constitutional questions
No, really, hear us out. The fact that Obamacare‘s mandate has been arguably rewritten as a simple tax provision actually means something very positive at the political level for those who don’t want excessive government overreach to get carte blanche. Prior to this case, regulation of industries or people was always justified under the framework of interstate commerce (we’ll revisit this later). Now, however, taxation has been given a power that most liberals could not have imagined in their wildest dreams. On the surface, this looks like a bad thing. Actually, it could be quite the opposite.
Obamacare is probably the first case to ever involve what is arguably a sleeper tax – that is, a tax that isn’t called a tax in the law itself, but may behave like one. It will also probably be the last, because from now on, every single case that remotely involves IRS penalties as a means of enforcement will be instantly slammed as a sleeper mandate-style tax by its opponents and subjected to the same level of scrutiny as your average tax increase while in Congress. This mandate was able to get by on the fig leaf of being a penalty. Future adventures with the idea won’t have that luxury.
This means that Roberts has just sent every future mandate to clear the desk of anti-tax giants like Grover Norquist before it can get become law. All we can say is good luck with that.
#4. The liberal judges inadvertently brought Federalism back
Arguably ever since progressivism first became a potent political force, the fact that the Federal government is constrained in relation to the states has chafed endlessly at progressive policymakers. Perhaps for this reason, they have worked to make the very concept of states’ rights anathema, both legally and politically. Conservative jurists, meanwhile, have pushed back, citing the traditional separation of powers.
This case implicated that question strongly, as one of the less glamorous questions considered was whether a mandatory Medicaid expansion that was attached to Obamacare was constitutional in the first place. According to the Roberts Court, it was, but there was a serious catch, explained by Peter Suderman of Reason Magazine in this video:
Got that? States are allowed to opt out of the Medicaid expansion without any retaliation in terms of existing funding from the Federal Government. In effect, this meant that the expansion was completely toothless, and states would only undertake it if they thought that additional money offered by the Federal government was worth it. The idea that states can opt out of anything is a huge jump towards state sovereignty.
But, you might be thinking, so what? Roberts could have gotten all that and more if he’d signed on with the conservatives. This misses the fact that not only did Roberts resurrect states’ rights, but he did it with the blessing of several liberal justices on the court, since the ruling on the Medicaid expansion came down 7-2. This is the equivalent of getting Al Sharpton to vote against affirmative action, and it means that functionally, even the Court’s Left has declared the Constitution itself in favor of state sovereignty over and against Federal overreach. To quote Ken Cuccinelli:
“They preserved our first principles protections, our individual liberty protections. They advanced state sovereignty, strangely enough, while keeping the law. That was not one of the combinations that were even in our top five. That permutation was one that we didn’t spend a lot of time thinking was a likely outcome. But here we are. That’s the one we’ve got.”
#3. Roberts got the liberals to actually set up a limit on the Commerce Clause
This is similar to the situation above, except even bigger. One of the signature judicial “achievements” of the Left has been the erosion of individual liberty using Congress’ power to regulate interstate commerce. This disturbing trend arguably reached its peak in Wickard v. Filburn, a case that said that Congress could regulate everything including how much wheat a farmer fed his hogs because that could have a plausible impact on interstate commerce. In the face of this, liberals rushed to pass every conceivable form of regulation, no matter how nitpicky or micromanaging it was, because if that was allowed, everything was. Successive courts nibbled around the edges in cases like United States vs. Morrison, but ultimately left this expansive reading untouched.
Until now. You see, there was one thing Wickard never did. It never said you could make a farmer buy wheat. Oh, you could regulate how he used it once he bought it, or how he produced it in order to sell it, but you couldn’t say he had to go buy it if he had no intention of doing so in the first place. And as it turns out, you can’t. The Court drew a line in the sand, saying the Federal government can’t create commerce in order to regulate it. This could easily have gone the other way if a liberal had written the opinion. As George Will pointed out:
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
Fortunately, that’s not what happened. Instead, Roberts somehow got four of his liberal colleagues to agree to this reading:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . 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. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual couldpotentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
This is the brightest line in the sand ever drawn on the question of where the interstate commerce power ends, and again, Roberts got his liberal colleagues to agree to it. The excuse of the taxing power is, as we’ve pointed out above, a trap for the Left. This standard, meanwhile is very likely to get more rigorous as time goes on. As Cuccinelli says:
“They’ve turned this whole thing into a spending and regulation question with this ruling. The individual liberty pieces were preserved and states got strengthened here in the constitutional structure under this ruling.”
In order to undo the evils of previous decisions like Wickard, the Court first had to take a stand and say, “This much and no further” when it came to interstate commerce. Thanks to Roberts, it has, and with liberal votes behind it.
#2. This deflates Occupy Wall Street’s biggest cause
Look, we‘re not pretending this case isn’t a victory for the Obama administration. It is. However, it also gives conservatives an unexpected right hook to use against the Obama administration’s Democratic base. Remember how before this decision came out, every liberal within breathing distance was bemoaning the fact that the case Citizens United v. FEC, which they claimed was decided by a runaway “activist court,” had permanently ceded American government to those with money?
You should, because many left-wing protests, including Occupy Wall Street and the Wisconsin protesters, used Citizens United as a rallying cry. Like the Obamacare decision, Citizens United is a 5-4 decision, and had Obamacare come down differently, Occupy Wall Street and their brethren could have used that as yet more evidence that it’s time for a constitutional amendment to “save Democracy.”
Except Obamacare’s decision came down technically in their favor. And that means that all the liberals who were sharpening their knives to go after this “activist court” suddenly have to revise their low opinion and start treating the Court’s decisions as final. Now, of course, it could be said that the same applies to conservatives who like the Citizens United ruling, who now have to endorse the Obamacare ruling. However, there’s a big difference – the Obamacare ruling doesn‘t say it’s unconstitutional to repeal Obamacare. It just says Obamacare is constitutional. Citizens United, meanwhile, says you absolutely cannot enact certain kinds of campaign finance law, no matter how much the bedraggled masses at Zuccotti Park might want you to. In other words, one simply leaves decisions up to Americans. The other hardwires an obstacle to progressive attacks on speech into the Constitution. And thanks to John Roberts’ decision, Leftists now have to either argue against Obamacare or for Citizens United. Arguably the main talking point that motivates their base – too much evil Republican money in politics – has just been frozen out of relevance. Charles Krauthammer puts it best:
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 to 4 decision split along ideological lines that might be perceived as partisan and political.[...]
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
1. Mitt Romney now will have a much easier time defeating Barack Obama
When it comes to this one, as President Obama might say, “this is not politics, this is math.” In the not-quite-24-hours since Obamacare was ruled constitutional, Mitt Romney has raised a breathtaking $3 million, according to Politico. Why? We’ll let Erick Erickson make the case for us:
Finally, while I am not down on John Roberts like many of you are today, i will be very down on Congressional Republicans if they do not now try to shut down the individual mandate. Force the Democrats on the record about the mandate. Defund Obamacare. This now, by necessity, is a political fight and the GOP sure as hell should fight.
60% of Americans agree with them on the issue. And guess what? The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.
It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.
How else to put it? Romney has been handed an issue where 60 percent of the voting public agree with him and told to run with it. The reaction of many people who previously were skeptical of Romney shows just how powerful this is – he has transformed from the problematic standard bearer of a party that might potentially have to face thorny questions on health care to the anti-Obamacare candidate: Anti-mandate, anti-massive tax on the middle class, and pro-liberty. Some have claimed his own law in Massachusetts will end up being used against him in this case. If that’s true, we’re at a loss for who could possibly use it. The Obama administration has to run on their record, and the fact of the matter is that running on a law that imposes a massive, unpopular tax on the whole country, is going to look a heck of a lot worse than running while disowning a previous experiment with the idea at the state level and promising to do away with the national version once elected. Romney’s moment of heresy was years ago. Obama’s is right now.
Do these reasons presuppose a massive gamble on Roberts’ part? Absolutely. Could things go ruinously wrong if the makeup of the Court shifts to the Left after this decision? Yes. Could things go ruinously wrong if Mitt Romney doesn’t win in November? Obviously. But this decision could still turn out to be the nail in the coffin of the Obama Presidency. Or, perhaps more appropriately, this Court could be the death panel that decides it‘s time for Obama’s administration to end its life.
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