We Got OUR 5-4 Decision: Don’t Over-React
Following the health care decision this morning on the Internet as it unfolded with CNN blaring in the background, I was, like most readers here, surprised. Incidentally, while CNN’s Wolf Blitzer was announcing the mandate was struck down and lining up liberal talking heads to comment, the Internet was reporting, correctly, the opposite. Jeffrey Toobin apologies aside for the initial confusion, it is quite evident that the lamestream media is quite literally lame.
There is obviously no shortage of opinion here and likely will be for the next week or so. Reserving final analysis after reading the opinions- the majority opinion, the concurrence and the dissent- conservatives should take heart in this decision. We, in fact, won. Not until much later and then only obliquely will we ever learn of what the dynamics of this decision was with respect to the Justices. Obviously, most of the conservative vitriol will be directed at Chief Justice Roberts. It would, however, be a serious mistake to draw him as a liberal. This majority opinion was a victory.
Where the confusion in the original reporting came in was the beginning of the actual opinion. That is, Roberts essentially asserted that the mandate would never have survived scrutiny strictly under the Commerce Clause. Given Roberts’ stressing this in the beginning of the opinion, the excellently written dissent, and the forceful concurrence where there is more disagreement with Roberts than “concurrence,” it is clear that there was not five votes to extend Congressional authority under the Commerce Clause. This helps explain why Roberts resurrected the tax issue when both sides conceded upfront that it was not a tax. Of course, that was in relation to application of the Anti-Injunction Act. Even here, Roberts had to parse words and split hairs in the interpretation of the AIA and then dismiss its application to this case. I originally believed that Roberts was using this line of argument to, as they say, “punt the ball” down the road as Alebrto Gonzalez recently stated was a possibility. John Roberts did not punt the ball down the road; he punted the ball into the political arena.
I think you have to look at this in reverse. What if the Supreme Court struck down the mandate strictly along Commerce Clause lines? What if, as a result, they invalidated the entire law? What then? After the hoopla, back-slapping, high-fiving and “I told you so’s,” there has to be a replacement for Obamacare. No health care reform was never an option. In an essence, this simply now forces the issue. If they had for some reason invoked the AIA, that would have been punting the ball down the road. That was this writer’s main concern when Roberts resurrected the question.
Equally important, this entire question is now framed within the area of taxation. As Eric Erickson notes in his article, that power is already rather expansive. This decision does not expand the power any further- or too much further- but it does expose Obamacare for what it really is and what conservatives knew all along- a massive tax increase. Some have placed that tax increase at $500 billion ranking it among one of the largest increases in American history. Although Obama will deflect attention away from this fact, it remains just that- a tax increase. Hence, Obama’s insistence that Obamacare is not a tax increase, or a new tax, or that he would not raise taxes on the middle class is revealed as a lie. It is difficult to run on that record.
Already, before the nuances of the law were played out before the Supreme Court, a majority of Americans were opposed to Obamacare. If you take that original rejection and couple it with a now-revealed tax increase, Obama faces a daunting task. Trying to defend such a massive tax increase in an election year especially considering that another massive tax increase- the end of the Bush tax cuts at the end of the year- is political suicide. It is items like this that lead to Presidential defeats (Bush I’s “Read my lips…no new taxes” promise). The simple fact is that if it walks like a duck and it talks like a duck, it is a duck. John Roberts merely phrased it in legalese.
Hence, this decision may have, if Republicans play this correctly, actually spelled the end of the Obama Era. Without running to the courts, we can now focus on legislatively do what the Court failed to do today- dismantle and replace Obamacare. Despite the prognostication by moonbats like Debbie Wasserman-Schultz and Nancy Pelosi, the House of Representatives will remain in Republican hands come November. Unless there are any major upsets, Republicans will control the Senate come January, 2013. But, that is only half the battle. Should both Republican-controlled houses of Congress vote to repeal Obamacare, it would simply be vetoed by Obama. Although the votes may be there in the House, there are not enough votes to override a veto in the Senate. It is projected that the Republican will have a 52 seat majority in the Senate. That would require 15 Democrats to override- that ain’t happening. But all that becomes moot with a Romney Presidency.
There is no doubt that euphoria reigned at 1600 Pennsylvania Avenue around 10:30 AM this morning. There was probably hoopla, high-fives and a lot of back-slapping. Over at the Justice Department, Donald Verrilli probably let out a huge sigh of relief. But when the dust settles, that euphoria will recede into the hot Washington night. Somewhere, somehow I have to think that it is John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sam Alito who are slapping each other on the back tonight for slyly laying the ground work for the demise of Obamacare.
Regarding the Medicaid provision, there was never a doubt that this aspect, in principle, would be upheld. Of course the federal government can disburse funds with strings attached. What they ruled is that they cannot use the funding- or removing funding- to penalize a state for falling on their knees at altar of the federal government. This clears the way for states to voluntarily opt out of Medicaid expansion within their borders without fear of losing all Medicaid federal dollars. It is a sum-zero game.
It is evident from the concurrence and the dissent that there were never five votes to uphold the law under the Commerce Clause. As concerns the Commerce Clause, this was a 5-4 de facto victory for conservatives. By not addressing the issue per se, Roberts achieves two things: he placed a limit on the power of Congress under the Commerce Clause and he backed Obama and Democrats into a political corner. The Benjamin Franklin quote about death and taxes is a wink and a nod towards the conservative community to now rephrase and characterize this issue. Because if there is one thing Americans dislike more than Obamacare, it is taxes. Instead of directing vitriol at John Roberts, we should actually be thanking him. This will reinvigorate the Tea Party movement. John Roberts did his part; it is now time for the American electorate to do their part in November.