Thursday, June 28, 2012

What Did SCOTUS Just Do?

supreme court

The Weekly Standard
Was today's Supreme Court Obamacare decision a win for conservatives or a loss? It depends on what you were rooting for.
If you were above all interested in the bill being struck down, it was mostly a loss. On the other hand, if you were more concerned about the qualitative expansion in the power of the government that the bill represented, it was definitely a win.
First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.
Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.
Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived. The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn't think we could have one without the other, but now maybe we can.
If Obama loses in November, that is...


  1. What about Romney? What is his view on gov't controlled health care?

  2. Roberts did not need to uphold the bill to accomplish the two positives you write about, Al. He could have written the same language that limits the commerce clause WITHOUT reclassifying the penalty as a tax. A crude analogy would be letting the intruder rape and kill your wife because you used the moment to build a wall to keep intruders out.

    Roberts went out of his way to uphold this law as the dissenting justices noted when they wrote tt is not the role of the court to alter the definition of the law so as to make it constitutional. The authors and the promoters of this law repeatedly affirmed it was NOT a tax. Roberts in his sole discretion decided that it is so he could uphold it. Why? We do not know but the most logical response is that he wanted everyone to see him and the court as non-partisan. More limp-wristed conservative politicians trying to be "fair" with liberals who never are.