Obamacare Ruling

Of course I am disappointed by the decision, but I'm not surprised. I was predicting a 6-3 ruling upholding the mandate with Kennedy and Roberts in the majority. I had believed, like many, that if the conservative wing could not get Kennedy that Roberts would side with the liberal wing to "control" the opinion of the court, but never did I imagine that Kennedy would dissent while Roberts joined the liberals. That part makes it sting a little more, but honestly, I'm not shocked by the result. That said, there are a lot of silver linings, and here are some things I think that conservative-libertarians should keep in mind as we move forward: 1) There was a VERY fine distinction between the dissent and the majority opinion on the issue of the mandate. From the dissent: "The issue was not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so." The fate of this decision rested on whether the mandate was a penalty or a tax, but how many of the dissenters would have joined the majority if it had been clear this was a tax? (we don't know for sure, because the dissenters do not address the issue of whether they would have upheld a non-insurance tax under Congress's taxing power, but it seems likely that at least one would have, given the breadth of that power in the court's jurisprudence). Given that, I think all the harrumph-ing about this case as establishing a broad new federal power is a little over-blown. I for one, don't much care whether Congress called the thing a penalty or a tax, because functionally, it amounts to the same thing. How, then, could we have seen it as a victory for freedom or limited government if the decision had said "sorry, it's a penalty, and hence you can't have it," when Congress could have done the same thing anyway simply by calling it a tax? Such a decision would have won the day, but would have left a clear road map for Congress reaching the exact same result via different means. Such a ruling would not have been a grand constitutional victory, but a narrow ruling striking this hideous bill, and leaving us just as exposed to Congress's massive tax power (as we have been for a century). 2) We did win on the Commerce Clause issue, which, while that probably feels like cold comfort now, is nevertheless important. I did NOT expect that result, and so see it as a silver lining. Don't forget that prior to US v. Lopez in the 1990s, most constitutional scholars had thought all commerce clause limitations were dead. Thanks to Lopez, Morrison, and now NFIB, there are at least some limits on Congress's authority to regulate commerce. But who cares, you ask, if Congress can squeeze in the back door with it's taxing authority? It matters because politically it is harder for Congress to pass a tax than to "regulate commerce." Indeed, one of the things that makes the decision today so galling is that it allowed the Democrats to garner the political benefits of "pretending" this wasn't a tax (which of course it was, which is one of the reasons I'm not as upset with Roberts as I suspect some of my peers are right now) to secure passage by the narrowest of margins while getting the benefit (in terms of constitutionality) of it being a tax. That's maddening, but understandable. The Court has a duty--which CJ Roberts clearly appreciates--to uphold statutes if they are constitutional under any fair reading. I happen to agree with the dissent that construing this "penalty" as a tax was a bit tortured, but, the silver lining is: going forward, Congress can't play that game again b/c of the clear precedent here. NEXT TIME, they will have to assert the proper basis for their jurisdiction. So the decision, while allowing the mandate, also shrinks the very hole which such legislation can be shoved through. And the other upshot of winning on the Commerce Clause issue.... 3) It's now clear, and judicially decreed, that this bill is a massive tax increase! (duh!). This is a political weapon for the GOP. I don't pretend to know how the politics will sugar out, and of course the Administration will spin this as a big win, BUT: the law is still unpopular, and now the GOP can say, with perfect justification, the SCOTUS peeled away the BS and laid bare for all what this law really is. A highly regressive TAX on Americans with no health insurance. Ouch. I think there is mileage to get out of this with voters. And finally, 4) Let's all remember that the ballot box is and always has been more important than the Courts in getting good policy. As CJ Roberts noted: "It is not our job to protect the people from the consequences of their political choices." Amen. It always amazes me that conservatives seem to fall into the trap of thinking the Court should strike down bad laws. Nonsense. We have a right to enact stupid laws. This one surely was one. There was a good argument that it was unconstitutional, but we lost that fight. Now let's push forward politically, rather than legally, on the far more salient point: constitutional or not, it's an economic basket case and we need a President and a Congress willing to gut it and start fresh.