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SCOTUS & ObamaCare: The Search for a Silver Lining

June 28th, 2012 - 9:17 am

Would it have been better had Chief Justice Roberts voted the other way, giving us a 5-4 decision against ObamaCare? (Note by the way that some initial reports had the decision 6-3 in support.) My reflexive instinct says, “Yes, it would have been better to put paid to this fiscal and political monstrosity.”

But maybe I am being hasty. There are some subsidiary concerns, like the reputation of the Supreme Court in the culture at large. As Glenn Reynolds asked, “So, liberals, does this mean the Supreme Court is legitimate again?” The hysteria about what the Supreme Court might do, evident in the president’s minatory language as well as from other fruity precincts on the Left, was not a healthy thing. The decision certainly took the air out of that meme.

There is also the issue of whether overturning legislation judicially (as distinct from repealing it legislatively) is a habit to be encouraged. Right and Left complain about “judicial activism” whenever the court’s activity goes against legislation they like. “Activism” is not the issue so much as the proper role of the courts in our tripartite system. There is something to be said for limiting the use of the courts as a legislative tool.

But the main thing to be said about the Court’s decision today concerns the grounds upon which it was made. The individual mandate was upheld as a tax increase. Basically, the Court said that Congress has the power to tax the bejesus out of you. But you already knew that, right? If we don’t like the taxes they institute, we the people have the right to change the make up of Congress. November 2010 was a start.

The critical political issue is that Obama insisted that the so-called “Affordable Care Act” was not  a tax. Ann Althouse, in a typically cut-to-the-chase post, reproduces (from Drudge) this exchange between George Stephanopoulos and Obama during the debate over ObamaCare:

STEPHANOPOULOS: [I]t’s still a tax increase.

OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.

Here’s the question: is Althouse right that the take-away from today’s decision is that “Obama imposes huge tax on the American middle class”? That, I believe, is the reality. Is that how it will be read?

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