Mass Hysteria and the ObamaCare Decision

Even a casual reader of this blog, let anyone who follows my tweets as @ConservativeLA knows that I can flip out and wring my hands with the best of them.

And like most conservatives, flip out I did, when the news came down that Roberts had authored a majority opinion upholding ObamaCare.

Within hours, though, a few voices emerged with a counter-intuitive counter-narrative that I first thought utterly daft. Like Hugh Hewitt:

One way to think about this: The decision is a modern Marbury v. Madison, where the executive who thought he had won had actually lost. The Chief Justice, already on the fence because of the plausible argument about the taxing power and worried about the Court’s reputation and legitimacy as well as the prospect of two or three more appointees from President Obama, decides to go for the historic win and, by putting the taxing power on steroids, upholds the law but also changes the campaign tone which will not only result in the election of Mitt Romney and security in the next round of Supreme Court nominations and confirmations, but also lays the foundation for a long range cabining of the Commerce Clause and an eventual strike down of other portions of Obamacare, including the HHS regs.


Then Sean Trende at RealClearPolitics:

Barack Obama was forced to go on television and praise the court’s ruling. In so doing, he validated — at least implicitly — one of the most pro-state’s rights decisions in recent times.

Roberts has basically done what John Marshall did: Insulate the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

Then George Will:

By persuading the court to reject a Commerce Clause rationale for a President’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

Now Randy Barnett:

The legal challenge to the Affordable Care Act…was about two huge things: saving the country from Obamacare and saving the Constitution for the country.

On Thursday, to my great disappointment, we lost the first point in the Supreme Court’s 5 to 4 ruling to uphold the health-care law. But to my enormous relief, we won the second. Before the decision, I figured it was all or nothing. But if I had been made to choose one over the other, I would have picked the Constitution.

In November, voters can still fight Obamacare. Yet no single election could have saved the Constitution from the court.

But forget about the narrowing of the heretofore increasingly elastic Commerce Clause. Here’s the really awesome part, via Heritage:

Now that the individual mandate has acquired the official constitutional status of a “tax”, there is no longer any doubt that the Congress, and more specifically the Senate, can repeal it pursuant to the simple majority vote threshold available under the Budget Act’s reconciliation process. Some Senate insiders were concerned that the reconciliation process would leave too much of Obamacare intact, including the individual mandate. But today’s decision, while alarming in so many other ways, dispels with that concern.

The mandate is now a revenue provision. Therefore, it is germane and not subject to a Senate parliamentary point of order to strike it from a repeal bill. The Senate’s filibuster process that would require a supermajority of 60 Senate votes to approve repeal is now irrelevant.

So take a chill pill. Then we’ll take the White House, take the Senate, keep the House, and repeal this leviathan.


An additional musing:

Imagine an alternate scenario vis. ObamaCare.

Let’s say Congress passed, and President Obama signed into law, a bill that raised marginal tax rates. Rational people would probably agree that that would be within their Constitutional purview.

And let’s say that the same bill contained a tax credit for health insurance. Again, rational people would probably agree that that would be Constitutional.

And let’s say that those two clearly Constitutional elements achieved the same social and economic effects as the individual mandate?

Get where I’m going with this?

Congress (to my eternal irritation) loves to “incentivize” behaviors it deems desirable. They do it all the time.

How is the individual mandate any different? If it achieves the same manipulation of our economic behavior, what is the Constitutional distinction?

The more I ponder the decision, the more clear-eyed Roberts seems.


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