SCOTUS & ObamaCare: The Search for a Silver Lining

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?

The Narrative seems to be congealing around the idea that the decision is a boost for Obama. I wonder. Althouse makes this interesting observation: “I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what I’m really seeing is how bad it is for him with the mandate declared a tax.” I think so. Will those who are going to be most hurt by this legislation agree? Althouse argues that “the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That’s got to hurt politically.” I hope she is right. Romney has lost no time in playing it that way:


Republican Mitt Romney is promising that he will repeal the federal health care law the Supreme Court just upheld.

He called the decision incorrect and said Thursday that it is “bad law.” He says it raises taxes and cuts Medicare.

Yep, and yep again. Bottom line: the ball is back in the court of those who favor individual liberty and limited government. John Boehner got it absolutely right when he said: “Today’s ruling underscores the urgency of repealing this harmful law in its entirety.” And I see from Drudge that the House has scheduled a vote to repeal ObamaCare for the week of July 9. So maybe, just maybe, John Roberts was the hedgehog in this scenario, or at least the purveyor of silver linings.

thumbnail image and illustration courtesy shutterstock / 2399


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