Silver Lining to the Supreme Court Decision -- If the Republcians Can Act On It
Clarice Feldman, in "Obamacare: 'Things are now up for Grabs'" (American Thinker June 29th 2012) http://www.americanthinker.com/2012/06/obamacare_things_are_now_up_for_grabs.html
indicates several good aspects of the Supreme Court's decision on Obamacare.
First, as she points out, in upholding Obamacare, Chief Justice Roberts actually limited Federal power.
On the individual mandate, Roberts joined with the left wing of the Court and sustained it but only after finding it was not authorized by the Commerce Clause and was justified only if one considered it a tax on inactivity-in this case the failure to secure insurance.
By explicitly recognizing limits to the Commerce Clause, Roberts has weakened the most significant Constiutional enabler of the expansion of Federal government power over our daily lives. He has also removed the fig-leaf of mandating expensive behavior while pretending that such behavior does not constitute a "tax." From now on, it's going to be a lot easier for economic conservatives to point out the tax-like nature of pretty much any governmental mandate.
Secondly, he avoided having the Supreme Court make a decision on the merits of policy -- in other words, "broad constructionism." He correctly stated that the Court's only concern was with the constitutionality of the bill, and he behaved in the best tradition of jurisprudence by attempting to "rescue the contract" when he found that the law would have been unconstitutional as a Commerce-Clause-enabled mandate, but is Constitutional as a tax.
Roberts made clear that he thought that Obamacare was an atrocious idea, stating
"It is not our job to protect the people from the consequences of their political choices."
and he's exactly right. That's not the Supreme Court's job, and we would be very sorry if it was, since the Supreme Court might someday be dominated by a Left majority. We should never create a precedent for a Constitutional rupture, the more so because it might someday be used against us.
Thirdly, now that this has been identified as a "tax," we can reverse it politically. This can start even before the November elections.
The ball is now in the Republicans' court. They've already scheduled a repeal vote on July 11. Once before the Democrat-controlled Senate was able to scotch the effort by threat of filibuster. Had the mandate stood as mandate they could do so again. But now that it's a tax, it can be passed by a simple majority. And if it is, the president will be forced before the election to veto a repeal of a law a majority of the voters keep indicating they want repealed.
Every Democrat running in November will be forced to defend what amounts to the biggest tax increase-about $400 billion dollars-in American history, a tax largely levied against the young and the middle class who don't normally carry health insurance.
Of course, the current Congress will probably fail to repeal Obamacare, and if they succeeded in repealing it, Obama would veto the repeal. But, if the Republicans play their cards at all right, the votes against repealing Obamacare can be used as political weapons against the Democratic legislators who voted for it. If the Republicans actually succeed in getting the repeal through Congress, then Obama's veto can be used against him.
Fourthly, the Republicans now have a tremendously powerful argument with which to attack Obama and the Democrats in the 2012 campaign. Namely
Obama imposed a huge new tax on working people.
This tax is highly regressive, because rich people are already buying expensive health care, and (if Obamacare crashed the private health care system) would simply get major treatments abroad. The very poorest might actually be helped by Obamacare -- if they are able to navigate the bureaucratic labyrinth, on their own (they (we) can't afford accountants and lawyers). It is the middle classes -- the most productive workers in America or indeed the world -- who will face rising healthcare costs and an increasingly-hostile healthcare bureaucracy, on pain of a major new tax should they fail to join the system.
If the Republicans can't spin this into 2012 victories, they don't deserve to govern.
Finally:
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.
Majorities are fleeting; the Constitution endures. If we win in 2012, we can repeal this very bad law, and its failure to ever even come into effect may dishearten those who seek such transgressions on our liberty, since they will have worked hard to absolutely no avail.
Remember Hayek's and Von Mises' arguments that democracy is incompatible with socialism, because a democracy may change policies and thus foil any long-term socialist schemes? This is usually taken to mean "socialism destroys democracy," and we are seeing this happen right now in Europe.
Yet the dagger has two edges, and the other edge is "democracy destroys socialism." A free and active, libertarian people may cast off the shackles that the socialists would fasten upon them, and frustrate their policies simply by reversing them when the libertarians have their turn at power.
Remember how Reagan abolished or hamstrung much of the Great Society programs? He's hated for this on the Left. May Romney wind up similiarly hated, and for the same reasons!
indicates several good aspects of the Supreme Court's decision on Obamacare.
First, as she points out, in upholding Obamacare, Chief Justice Roberts actually limited Federal power.
On the individual mandate, Roberts joined with the left wing of the Court and sustained it but only after finding it was not authorized by the Commerce Clause and was justified only if one considered it a tax on inactivity-in this case the failure to secure insurance.
By explicitly recognizing limits to the Commerce Clause, Roberts has weakened the most significant Constiutional enabler of the expansion of Federal government power over our daily lives. He has also removed the fig-leaf of mandating expensive behavior while pretending that such behavior does not constitute a "tax." From now on, it's going to be a lot easier for economic conservatives to point out the tax-like nature of pretty much any governmental mandate.
Secondly, he avoided having the Supreme Court make a decision on the merits of policy -- in other words, "broad constructionism." He correctly stated that the Court's only concern was with the constitutionality of the bill, and he behaved in the best tradition of jurisprudence by attempting to "rescue the contract" when he found that the law would have been unconstitutional as a Commerce-Clause-enabled mandate, but is Constitutional as a tax.
Roberts made clear that he thought that Obamacare was an atrocious idea, stating
"It is not our job to protect the people from the consequences of their political choices."
and he's exactly right. That's not the Supreme Court's job, and we would be very sorry if it was, since the Supreme Court might someday be dominated by a Left majority. We should never create a precedent for a Constitutional rupture, the more so because it might someday be used against us.
Thirdly, now that this has been identified as a "tax," we can reverse it politically. This can start even before the November elections.
The ball is now in the Republicans' court. They've already scheduled a repeal vote on July 11. Once before the Democrat-controlled Senate was able to scotch the effort by threat of filibuster. Had the mandate stood as mandate they could do so again. But now that it's a tax, it can be passed by a simple majority. And if it is, the president will be forced before the election to veto a repeal of a law a majority of the voters keep indicating they want repealed.
Every Democrat running in November will be forced to defend what amounts to the biggest tax increase-about $400 billion dollars-in American history, a tax largely levied against the young and the middle class who don't normally carry health insurance.
Of course, the current Congress will probably fail to repeal Obamacare, and if they succeeded in repealing it, Obama would veto the repeal. But, if the Republicans play their cards at all right, the votes against repealing Obamacare can be used as political weapons against the Democratic legislators who voted for it. If the Republicans actually succeed in getting the repeal through Congress, then Obama's veto can be used against him.
Fourthly, the Republicans now have a tremendously powerful argument with which to attack Obama and the Democrats in the 2012 campaign. Namely
Obama imposed a huge new tax on working people.
This tax is highly regressive, because rich people are already buying expensive health care, and (if Obamacare crashed the private health care system) would simply get major treatments abroad. The very poorest might actually be helped by Obamacare -- if they are able to navigate the bureaucratic labyrinth, on their own (they (we) can't afford accountants and lawyers). It is the middle classes -- the most productive workers in America or indeed the world -- who will face rising healthcare costs and an increasingly-hostile healthcare bureaucracy, on pain of a major new tax should they fail to join the system.
If the Republicans can't spin this into 2012 victories, they don't deserve to govern.
Finally:
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.
Majorities are fleeting; the Constitution endures. If we win in 2012, we can repeal this very bad law, and its failure to ever even come into effect may dishearten those who seek such transgressions on our liberty, since they will have worked hard to absolutely no avail.
Remember Hayek's and Von Mises' arguments that democracy is incompatible with socialism, because a democracy may change policies and thus foil any long-term socialist schemes? This is usually taken to mean "socialism destroys democracy," and we are seeing this happen right now in Europe.
Yet the dagger has two edges, and the other edge is "democracy destroys socialism." A free and active, libertarian people may cast off the shackles that the socialists would fasten upon them, and frustrate their policies simply by reversing them when the libertarians have their turn at power.
Remember how Reagan abolished or hamstrung much of the Great Society programs? He's hated for this on the Left. May Romney wind up similiarly hated, and for the same reasons!