Notwithstanding the 4-1-4 Supreme Court decision that the Affordable Health Plan is constitutional – including the snarky intonations in Justice Ginsburg’s majority decision and the head-scratchingly majority-like sound of the minority opinion – the verdict remains out on the longterm effect of Chief Justice John Roberts’ rogue opinion that the ObamaCare mandate is upheld as a tax. Did Roberts switch from the conservative four to the liberal four at the last minute as wording clues in both opinions might show? First Roberts argues that the mandate is not a tax; then he says it is; conclusion: it’s up to the people to decide, not the lawyers in the court system. Was Roberts constrained by elite public opinon and an objective of preserving the reputation of the Supreme Court? And how will the “mine field” he set for future legistlative initiatives – using Congress’s power to tax, not using the liberal tool of the Commerce Clause – play out in affirmative action cases coming up on next year’s Supreme Court agenda?
Short term, Roberts saved Obama’s presidency and moved the country well along the road to the socialist single-payer health care system that has brought Western Europe to its knees. He may have temporarily saved the standing of the Court, but Roberts has dealt a difficult hand to the American people with ObamaCare’s massive new regulation and huge tax increases on the middle class. The Roberts finesse in enhancing the taxing power of Congress provides a whole new realm of regulation. For example, if the Feds decide you ought to by a Chevy Volt and you don’t choose to do so, Congress can regulate the policy by a punative tax. Every Congressional election, every election year, now becomes pivotal. There’s no more room for the free riders who let others soil their hands with politics, or worse, wait for the Supreme Court to bail out the mistakes made by their representatives. This fall is not about specatator sports like college football. Let’s hope Dorothy Rabinowitz of the Wall Street Journal had it right when she quoted Japanesse Admiral Yamamoto, speaking after Pearl Harbor: “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” What are you prepared to do? Join the fight.
The pundits are making hay out of the Roberts decision. If you missed any of these, take a look:
Matthew Continnetti, Washington Free Beacon http://freebeacon.com/the-tea-partys-roe/ “The health care battle is not settled. On the contrary: Justice Roberts’s opinion has airlifted the combatants to a different battlefield altogether. By affirming the individual mandate not on the grounds of the Commerce Clause but the congressional power to tax, Roberts has, intentionally or not, exposed the president as a liar, and as willing to raise taxes on the middle class.”
Jay Cost, The Weekly Standard Blog, http://www.weeklystandard.com/blogs/morning-jay-praise-john-roberts_647955.html “This country is hopelessly split along ideological lines, and it seems impossible for either side to gain any lasting advantage over the other. But maybe Roberts has managed to do precisely that. By nominally endorsing an overwhelmingly unpopular bill that is in major trouble anyway, he has created the political space needed to strike directly at the heart of liberal legal theory without inflaming the Democrats.”
John Yoo, Wall Street Journal, http://online.wsj.com/article/SB10001424052702303561504577496520011395292.html?mod=WSJ_Opinion_LEADTop “All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.”
Larry Kudlow at Red County, http://www.redcounty.com/content/obamacare-upheld-question-returns-does-gop-have-right-nominee “Romney has to make the case. He needs to link the anemic jobs and economic situation to the Obamacare tax, spend, and regulate fiscal drag. And he has to add to that mix the dangers to our freedoms embodied in Justice John Roberts’s expansion of the power to tax our personal behavior.”