When the decision came in, I was at home preparing for a webcast on spreadsheet standards (WOOOOO!). My husband had the radio on, and was confusing the hell out of me by telling me the individual mandate was unconstitutional and then that it was upheld.
So after the webcast, I looked at the details, and started thinking….you know, I don't think this result is all that bad.
Of course, I would have loved for the entire thing to get struck down. That said, I have to agree with Chief Justice Roberts in his opinion:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Sure, none of the Democrats wanted to argue that the individual mandate tax was a tax, for political theater reasons, but sure — it's a tax.
Oh, but to not pay that particular tax, you have to buy something from a private company! Yes, but there are tax breaks for buying things from private companies as well. The taxation power of the government is GINORMOUS. Think about Medicare – funded by a tax. Social Security – funded by a tax. Those are rather far-reaching.
So let me talk about some other aspects of the ruling.
1. Smackdown of the Commerce Clause power
2. Energizing some people who may have gone politically dormant, and a call to arms
3. Possible pathways to repeal
I'm not going to talk about Medicaid in this post. I may in another one, later.
1. Smackdown of the Commerce Clause power to extend to non-activity
I really really like that result. The Commerce Clause has gotten a bit too elastic over the past century. Tom Scocca at Slate notes the slapdown in this situation:
Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).
This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.
Yeah, that's how I'm seeing it right now. Because of part 2:
2. Kicking some politically dormant people in the ass
In the aftermath of the corporate bailouts and the Obamacare ram-through, a bunch of people who generally weren't terribly politically active got really pissed off and organized, forming various branches of the "Tea Party" (which actually isn't a terribly organized group, but no matter).
When the SCOTUS took up the Obamacare case, and after Republicans gained the House (but not the Senate), I think a lot of these people decided to rest for a while. Perhaps the SCOTUS will take care of the problem for us, they thought. Many of these Tea Party people weren't particularly conservative — many had been Democrats in times gone past (or still were). Some had voted for Obama.
But they were not looking forward to huge new mandated expenses, and the higher tax whammy sure to follow.
I think a lot of people, especially after hearing oral arguments, were expecting at least the individual mandate to get struck down (oh, it won't affect me if that's gone). Some people also didn't get too het up about paying for other people's sex lives, because they assumed they wouldn't have to.
Many Catholic organizations, some of which were very pro-Obamacare (except for the paying-for-other-people's-sins part), might have hoped that they really wouldn't have to deal with the specter of Catholic hospitals and charities closing or getting sued en masse. But they are. The SCOTUS isn't going to pull your bacon out of the fire.
Going back to Roberts' statement — just because a law is stupid (or even evil) doesn't make it unconstitutional. It's not the role of the court to take care of other people's political apathy or stupidity. You need to get off your ass and actually do something.
I will now hand it over to James Taranto:
The second difference is that the result in this decision is likely to be hated by people who aren't immersed in politics. The left hated Bush v. Gore for partisan reasons and hates Citizens United for ideological ones. People who aren't particularly partisan or ideological had no reason to care about either of those rulings. But this one will affect their health care, and a large majority of the public has long been hostile, and rightly so, to ObamaCare.
What's more, Roberts's opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate "is absolutely not a tax increase." He even lectured the network's George Stephanopoulos, who had cited the dictionary definition of tax: "George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition."
In 2008, Obama promised not to raise taxes on middle-class taxpayers. Oops. Maybe he can win back swing voters by telling them the word gullible isn't in the dictionary.
The Washington Examiner reported the other day that Patrick Kennedy, son of Ted and a former congressman, "warned in a fundraising email for Congressional Democrats that if the U.S. Supreme Court upholds President Obama's health care law, then 'dangerous Tea Party extremists will go on a rampage.' " The Tea Party does not actually "rampage," but it does something even more dangerous and extreme by Democratic lights: organize and vote.
This brings me to:
3. Paths to repeal
First, the obvious: Obama loses re-election. Republicans hold the House, gain the Senate (or get a few Democrats to turn tail on this particular issue). That's the straightforward path to repeal. Oh, and some have noted that because the mandate is a tax, said tax can be repealed with filibuster-protection. Woot.
Second: if it's a tax, you have to wait for it to get imposed to have an individual sue in federal courts over the legitimacy of the tax. I believe the current ruling really holds that as stupid as this tax may be, it's legit, so I think that path is a no-go.
I think lawsuits aren't the way to go here. As Roberts writes, this is something that requires a political solution — aka throw the bums out.
I am hopeful.
Back in 2010, in my Congressional district, Democrat John Hall was ousted by Republican (and political newcomer) Nan Hayworth. Two years earlier, I had been handing out pamphlets at Metro North for William Lalor, and I didn't have much luck (I did meet Hall, and shook his hand… he seemed a bit disconcerted that a. a political opponent was being so polite, b. the shoestring Lalor campaign managed to get someone posted at that station, and c. I was so young, comparatively. Dammit, weren't young women supposed to be pro-Democrat? What's that all about?
An outright overturn of Obamacare would probably have left a lot of independents feeling =meh= about the whole race this year. Sure, Obama doesn't inspire much hope for change at this point in time, but I can't say that Romney is particularly compelling.
But now people are faced with the prospect that if they keep Obama as President, they will never get rid of this albatross.
If you really hate Obamacare, you really can't vote for Obama. The Supreme Court is not going to save you.
5. Finally, and perhaps most importantly, I think this places the central issue of the election very clearly in front of the voters: Do you believe that the government ought to have more power over your life, or do you think it should have less? The Supreme Court is not going to save us against our own poor electoral decisions, if the people we elect go on to pass foolish taxes. Conservatives cannot rely on the Supreme Court as a backstop. So I think you will see the Tea Party movement revived, less focused on internecine battles and more focused again on the fundamental questions of the role of government.