Roberts Too Clever By Half
By Ross Kaminsky on 6.29.12 @ 6:10AM
And his supporters by more than half.
On Thursday morning, in the most anticipated
Supreme Court ruling in recent American history, Chief Justice John Roberts sided with the Court's four liberal Justices to uphold Obamacare's "individual mandate" as a tax, even while Roberts agreed with the four conservative members of the Court that the mandate would be unconstitutional if considered only based on the Commerce Clause.
The liberal mass media began immediate preening for their president, with the
New York Times calling the ruling a "victory for Obama," the
Washington Post proclaiming "a win for Obama today," and
MSNBC announcing "a dramatic victory."
They may be right, but the decision may equally turn out to be a pyrrhic victory for President Obama, motivating conservatives across the country and pushing independent voters along with skeptical conservatives and libertarians fully into the arms of Mitt Romney.
Since the Court found the mandate constitutional
(despite an embarrassing headline by CNN to the contrary), it rendered moot challenges to other important aspects of the Act, including guaranteed issue and community rating (requiring insurance companies to issue insurance to everyone regardless of pre-existing conditions and without considering most factors specific to a given applicant other than age and tobacco use).
The only aspect of Obamacare which was overturned, on a 7-2 vote, was the provision that would strip a state of its existing federal Medicaid funds if the state refused to comply with the law's provisions to expand Medicaid.
In opening his reading from the conservative Justices' dissent, Justice Anthony Kennedy, who just relinquished -- though perhaps unfairly -- the title of most suspect conservative on the Court to Chief Justice Roberts, noted "In our view, the entire Act before us is invalid in its entirety." I agree entirely.
The Court's majority found that the mandate is constitutional as a tax, with the implication being that Congress is allowed to impose almost any tax it wants to (other than things like poll taxes which impede fundamental rights of Americans). The dissenters disagreed: "Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs."
Regarding mandating of healthy young people to buy insurance to mask the costs of the rest of Obamacare, the dissenters were not shy: "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 Court's dissenters also noted that the law was specifically passed with the mandate as a penalty, not a tax: "We cannot rewrite the statute to be what it is not. Although this court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ... or judicially rewriting it." Critics of the majority's decision will say for the foreseeable future that Chief Justice Roberts rewrote Obamacare to save it. Michael Carvin, who argued against Obamacare before the Supreme Court, noted dryly, "I'm glad he rewrote the statute instead of the Constitution."
Carvin's summary of the Supreme Court's ruling was on target: "What the Obama Administration… thought they were doing was completely unconstitutional; what they lied to the American people about was constitutional.… Unfortunately they got away with that bait-and-switch. A fraud has been perpetrated on the American citizenry."
In oral arguments before the Supreme Court, the administration's attorneys argued -- as they knew they had to -- that the mandate was constitutional as a tax. This despite the fact that Democrats passed Obamacare by stating specifically and repeatedly that the
mandate was not a tax, including a testy response by President Obama himself to unusually challenging questioning by ABC's George Stephanopoulos in 2009.
As recently as a few months ago, President Obama's budget director said in a Congressional hearing that the
mandate is not a tax, with Health and Human Services Secretary Kathleen Sebelius saying "it operates as a tax, but it is
not per se a tax."
If the bill had been marketed to members of Congress and the public as a tax, it is unlikely that even the Cornhusker Kickback and the Louisiana Purchase would have been enough to pass the law, despite the large Democrat congressional majorities at the time. Senator Lindsey Graham (R-SC) said that "if it had been seen as a tax, they wouldn't have gotten ten votes, much less sixty."
As for those Democrats in Congress who have argued, and may continue to argue, that the Obamacare mandate is not a tax, Graham said "they either don't know what they're doing, or they lied to us. So this is a huge issue in the fall." Graham called for every Congressional Republican who is up for election to ask their Democratic opponents whether they support this tax increase; given that Democrats have little choice but to support Obamacare, this is the political equivalent of asking someone if he has stopped beating his wife yet, and a solid political tactic.
Thus, the fact that the Court found the mandate to be a tax offsets some of the political gains for Obama. The question is how much.
THOSE WHO DISLIKE Barack Obama or his "signature achievement" may be motivated by the Thursday's events, but the ruling remains an important victory for the president, even as it is likely a negative for individual Democratic members of the U.S. Senate facing difficult reelection campaigns in November. How big a victory this is for Obama depends on whether Republicans get better at messaging than they have been during the quarter-century since Ronald Reagan left the White House.
Republicans and conservative activists didn't take long to figure this out: Representative Jeff Landry (R-LA) called the individual mandate "the largest tax increase on the poor and the middle class in the history of this country." Statements from pro-liberty and pro-jobs organizations included many phrases like "the nation's largest and broadest tax increase in history" (from Americans for Job Security) and "Obamacare today became the largest tax increase in American history. The health care law has nearly doubled in cost from $940 billion to $1.76 trillion and taxpayers deserve nothing less than full repeal and defunding by Congress. American taxpayers can't afford the tax increases in the law…" (from the Taxpayers Protection Alliance.)
Senate Minority Leader Mitch McConnell (R-KY) got into the act within minutes of the Supreme Court ruling,
making a statement from the Senate floor calling for full repeal of Obamacare and observing that "it's not just that the promises about this law weren't kept. It's that it has made the problems it was meant to solve even worse." House Majority Leader Eric Cantor (R-VA) announced that the House will take up a vote on the repeal of Obamacare following their July 4th recess. That effort will be dead-on-arrival at the Democrat-controlled Senate but makes for good political theater.
Not surprisingly, Democratic reaction was rather different, with Rep. James Clyburn (D-SC) saying that the Court's ruling "not only upholds the effort but it upholds one of the methods that we spent a lot of time trying to get it into law.… Big, big victory for Obama."
The ruling is an epiphany for Democrats: Any time we want to regulate anything, we can now do so -- as long as we impose a tax for non-compliance, and we probably don't even have to call it a tax until we get to court!
If there is a shred of judicial good news from Thursday's Court ruling, it is that a majority of the Justices would have struck down the mandate if the question were only related to the Commerce Clause. The Court has allowed Congress to run roughshod over economic liberty since FDR's court-packing scheme cowed the Supreme Court into reserving "strict scrutiny" for non-economic issues while allowing economic regulations and law to be deemed constitutional as long as Congress could make a "rational basis" claim. Perhaps the best measure of how beneficial the judicial hidden gem in the Obamacare ruling is comes from the opinion of the far-left Justice Ruth Bader Ginsburg in which she decries "the Chief Justice's novel constraint on Congress' commerce power."
This is the first time in recent memory that an economic issue would have been found unconstitutional on a Commerce Clause basis, which bodes well for those who would fight future Congressional overreach -- unless Congress finds a way to impose that overreach as a tax, which today's ruling will of course make Democrats (and their occasional Republican allies in regulation) attempt to do. The good news is that imposing new taxes is near the top of the list of politically perilous pursuits.
For the hard-core constitutional thinkers, there was another piece of good news on Thursday: According to legal scholar David Kopel of the Independence Institute, "For decades, advocates of unlimited government have asserted that the Necessary and Proper Clause gives Congress the power to enact anything that Congress thinks is a good idea. Today's decision slams the door on that notion, and returns the Necessary and Proper Clause to originalist principles."
THE POLITICAL IMPACT of the ruling will be fascinating to watch evolve. In his first public remarks following the Court's ruling,
Mitt Romney stated that "Our mission is clear: if we want to get rid of Obamacare, we're going to have to replace President Obama." Romney added "What the Court did not do on its last day in session, I will do on my first day if elected President of the United States."
In his comments, Romney suggested that the Supreme Court "did not say that Obamacare is good law or that it is good policy. Obamacare was bad policy yesterday; it is bad policy today. Obamacare was bad law yesterday; it is bad law today." He went on to discuss the negative impacts of Obamacare:
[Despite raising taxes and cutting Medicare], Obamacare adds trillions to our deficits and to national debt and pushes those obligations on to coming generations. Obamacare also means that for up to 20 million Americans, they will lose the insurance they currently have, the insurance that they like and they want to keep. Obamacare is a job killer…three quarters of those surveyed by the Chamber of Commerce said Obamacare makes it less likely for them to hire people. And perhaps most troubling of all, Obamacare puts the federal government between you and your doctor. For all those reasons, it is important for us to repeal and replace Obamacare.
Clearly some people agreed: Romney's campaign reported a million dollars in online campaign contributions in the three hours after the ruling was announced. In that same time frame, in
political betting on intrade.com, the odds of President Obama winning re-election rose very slightly from just under 54 percent to about 55 percent, still well below the 60 percent betting odds that persisted for Obama for most of the last six months.
About half an hour after Romney spoke,
President Obama began his reaction to the ruling by dodging the real issue of the day, claiming that the Supreme Court's ruling "reaffirmed a fundamental principle that here in America, in the wealthiest nation on earth, no illness or accident should lead to any family's financial ruin." Of course, this is not what the Court "reaffirmed" nor is it about any "fundamental principle."
The president made specific reference to the political impact of the Court's action, saying that is a conversation for later; clearly Barack Obama knows that this "win" is a double-edged sword.
Needless to say, Obama did not mention the word "tax" in his remarks.
Instead, he went right to heartstring-pulling talking points about insurance companies "not being able to discriminate against children with preexisting conditions." Obama's laundry list of items which insurance companies must and must not do was a perfect reflection of the Democrat mentality that they can raise costs to insurers and health care providers without hurting quality, availability, or affordability for the public. It is the economic equivalent of believing, as my six-year old daughter does, in magical flying unicorns.
Former Speaker of the House Nancy Pelosi (D-CA) went down the same path with a
statement that thanks to Obamacare, "being a woman is no longer a pre-existing medical condition." And leftist activists are continuing in the Democrats' divide-and-conquer mode, such as a spokesperson for ProgressNow Colorado saying that the ruling is "a victory for… sick children, women, rural residents who need better health care, and small businesses." Of course, this will all be free in the left's Big Rock Candy Mountain world of economics.
The challenge for Republicans will be to remind people that essentially all of Obamacare's "popular" provisions raise costs of health care and health insurance, that there is no such thing as a free lunch. It will take some clever message framing to be able to counter the Democrats' arguments which will be misleading or simply wrong but easy to understand and superficially appealing.
Republicans have a favorable climate in which to deliver their message.
As pollster Scott Rasmussen put it, Obamacare "has already lost in the Court of Public Opinion" with 54 percent of Americans currently wanting the law repealed -- the exact same percentage as one week after Obamacare was passed.
REPUBLICAN PRESIDENTS HAVE A SAD HISTORY of nominating to the Supreme Court people who end up trampling both the letter of the Constitution and the clear intent of the Founders. But Gerald Ford's nomination of John Paul Stevens and George H.W. Bush's nomination of David Souter may, when history is written with more than a few hours of reflection, pale in comparison to conservatives' revulsion at Chief Justice John Roberts.
As Conn Carroll presciently noted three months ago, "If Roberts does end up being the fifth and deciding vote to uphold Obamacare, Bush's Supreme Court legacy will be regarded as a failure too. His reputation among conservatives will never recover." Perhaps his reputation should not be quite as damaged to begin with as Carroll suggests.
Roberts' majority opinion on the issue of the mandate is a painful but perhaps necessary reminder that we have a serious political problem in this country -- that Americans must start electing the right members of Congress, not counting on judges to bail us out from bad decisions made by those we have elected. Roberts makes us look in the mirror, perhaps reminding voters that people get the government they deserve. Indeed, the Chief Justice put it in black and white in his opinion: "It is not our job to protect the people from the consequences of their political choices."
While Roberts has a point that we should elect better politicians, I would argue that it is, in fact, the Court's job to protect us from time to time; framing it as protecting us from ourselves rather than from those we elect is a distinction without a difference as the members of the Court swear, as do other elected federal officials, to support and defend
the Constitution, not the people.
While even some conservative pundits, such as
Erick Erickson, are looking for a way to
give John Roberts a pass on his collaboration with the Court's liberals, it bears reminding that Roberts could have voted to overturn Obamacare and dealt a blow for liberty, by saying that the power to tax cannot be justified when the tax is levied for an action a person does not take. Many conservatives may find that John Roberts was very clever on Thursday, but he was too clever by (at least) half. Some will call it finesse; but perhaps cowardice would be equally accurate.
As my
Spectator colleague
Jim Antle put it, "Until you can find a real-world expansion of government power worse than Obamacare that this decision would enjoin, it seems that Roberts' conservative defenders are being too clever by four-fifths."
In a statement on the Supreme Court ruling, Colorado's Attorney General John Suthers (who was a party to the multi-state Obamacare challenge) argued that "Whatever limits remain on Congress's power will now be left to the political arena." While one might hope that the next election will offer a pro-liberty reaction by voters against President Obama and Obamacare, Suthers is less optimistic about the longer term, noting that if our liberty is dependent on the voters, "history has proven that little stands in the way of further encroachments on individual and state rights."
Nevertheless, there is no other route left to Americans. Lindsey Graham has figured it out: When asked by a Fox News interviewer "how do you hold the president accountable, Senator?" Graham's responded: "It's called an election."
The problem is that between voter ignorance and apathy, and the bias of much of the media, sustainable better election outcomes is a thin reed on which to hang our nation's liberty.
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