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My Take on Today’s Obamacare Decision

You better not pout, you better not cry, you better not shout I'm telling you why. The Commerce Clause is coming to town.

Here’s my writeup, elsewhere, on what happened. A few observations:

-In the long run, I’d rather lose the ones we can fix democratically than the ones we can’t.

-If Congress starts justifying every new regulation as a tax, Grover Norquist is going to be a very busy man.

-Romney has raised a vast amount of money from a lot of new donors today. Even more than energizing and galvanizing the base in the presidential race, focusing on repeal as a political goal should help down-ticket Republicans in Senate races (in states like Missouri, Ohio, Virginia and Florida) who lack Romney’s baggage on the issue.

-Both the Roberts and Scalia opinions are very explicit about the fact that Obamacare puts “massive new costs on insurers” and is essentially collectivist in using the mandate to force young people to subsidize the care of others by buying policies that will deliver them less benefits than the premiums they pay.

-I don’t know that anybody predicted a lineup of 5-4 for the mandate under the taxing power but 7-2 against the withholding of Medicaid funds from states that refuse to join the expansion of the program. It’s remarkable that Obama’s own Solicitor General at the time Obamacare was written joined an opinion calling it “a gun to the head” of the states.

-For all the flap before the decision about Justice Scalia rethinking Wickard v Filburn in his new book, neither his opinion nor Roberts’ actually argues for overturning Wickard or Gonzales v. Raich. That may come another day, but for now the Court simply distinguished them.

-I see in some quarters the notion that Scalia was wrong somehow to refer to Ginsburg’s opinion as “the dissent,” but her opinion is 4 Justices dissenting from the Court’s conclusion that the mandate wasn’t supported by the Commerce power. That is, technically, a dissent on that issue.

-Justice Thomas’ pithy 2-page opinion basically says that Congress is a spoiled child the Court didn’t say no to often enough & now it’s grown into an idiot teenager that does stupid things like try to force people to buy insurance policies. I paraphrase, but not by much.

-Characterizing the mandate as a tax may make it easier for Republicans, procedurally, to justify using the reconciliation process to repeal the bill with 51 votes instead of 60 in the Senate.

-This morning’s result will make Obama look even more ridiculous the next time he frames Citizens United as the work of a runaway right-wing Court.

-A prediction: the centerpiece of Chief Justice Roberts’ legacy on the court will be a case that hasn’t arisen yet.

Other commentary around the web worth reading:

You should, if you haven’t read in on the front page already, read Erick on why he’s not that down on John Roberts.

Krauthammer explains the institutional reasons that may have motivated Chief Justice Roberts to uphold the law.

Sean Trende compares Roberts’ decision to Marbury v Madison, which was my first thought as well.

Avik Roy looks at how the Medicaid decision could explode the federal deficit.

Tom Scocca looks further down the road at the impact of the Commerce Clause decision.

-In case you missed it, why IPAB is unconstitutional in at least two ways.

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