Obamacare Constitutional: Thoughts and Reactions

In a landmark ruling the Supreme Court today announced that in a 5-4 decision (with Justice Kennedy dissenting and Chief Justice Roberts writing the decision) that Obamacare, for the most part, is constitutional, including the individual mandate.

John Roberts declared,

“Congress had the power to impose the exaction in Section 5000A under the taxing power, and the Section 5000A need not be read to do more than impose a tax.  This is sufficient to sustain it.”

“Simply put, Congress may tax and spend,” Roberts wrote in the majority opinion. “This grant gives the federal government considerable influence even in areas where it cannot directly regulate.”

“The federal government may enact a tax on an activity that it cannot authorize, forbid or otherwise control,” Roberts wrote.

In other words, the constitutionality of the mandate is derived from it being a tax, not from any rights under the commerce clause.  As a constitutional scholar friend of mine stated,

I’m going to use this analogy on TV, to explain the Court’s ruling, unless one of you convinces me not to (and the fact that 90% of the population can’t process analogies isn’t a good enough reason). The government can’t force you to have kids, or punish you for not having kids, but they can make taxes higher for people without kids than they are for people with kids.

In a stinging and surprising dissent, Justice Anthony Kennedy suggested that the other justices wanted to wipe out the entire law. “In our view, the entire Act before us is invalid in its entirety,” he wrote.
The justices did rule against another key part of the law, saying the law’s Medicaid expansion — which starts in 2014 — tranforms the program into something it wasn’t designed to be.

“The court today limits the financial pressure the secretary may apply to induce states to accept the terms of the Medicaid expansion,” the ruling states. “As a practical matter, that means states may now choose to reject the expansion; that is the whole point. But that does not mean all or even any will.”

So my thoughts on the legal aspects?:

1.  Although this is clearly a defeat for conservatives, who hoped to put the issue to the grave, the reality is that this court was never going to seriously overturn the entire bill.  I never believed that for a second.  So legislative action was required to turn back Obamacare before, and is still required.

2.  The commerce clause, the Obama Administration’s argument, was null and void.  There never was a good argument for the commerce clause to apply in an industry that is not interstate.  In fact, Obamacare specifically prohibits buying this product across state lines, and the commerce clause simply does not apply in those cases.  The Supreme Court almost completely rejected the argument. The justices rejected two of the administration’s three arguments in support of the insurance requirement. But the court said the mandate can be construed as a tax. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” Roberts said.

3.  The power to tax is the power to destroy.  Chief Justice Roberts has reaffirmed this government right.  Simply put, they are treating Obamacare much like they treat Medicare and Social Security.

4.  The Medicare ruling is being dismissed, but this may be significant.  States now have the legal right to reject to enact this portion of the bill.  It may be the equivalent of a waiver.  What does this mean practically?  I don’t know if anyone knows.

So, my thoughts politically?

1. Short term, this is a big victory for the Obama Administration.  Their key legislative victory survives for another day.

2. Long term?  Long term this helps Mitt Romney.  I have been consistent on this.  I think overturning the mandate would have helped Romney marginally, by removing the issue all together.  However, now conservatives and especially Tea Party groups must unite behind Romney if they ever believe they can remove Obamacare. Once in place in 2014, it is highly unlikely that it will be repealed.  I would expect that Romney’s campaign coffers will grow substantially as well.

Furthermore, will this convince moderates, independents, and libertarians that it is essential for Romney to be the next President?  I think for some, the answer is ‘Yes’.

3.  Mitt Romney also has a new line of attack.  By defining the mandate as a tax, Obama no longer can claim not to have increased taxes on every living American.  The taxes in the ACA will raise $500 billion over the next decade, making it by far the largest tax increase in American history.  Furthermore, it is inherently a regressive tax, as it is basically imposed equally among the rich and the poor, though the poorest will receive subsidies.

This completely invalidates the left’s argument that Obama has been a low tax president.  If you include Obamacare taxes, our tax rates are the highest in decades.  Mitt Romney should pound this issue into the ground.

4.  The left’s credibility in lieu of the Supreme Court is a joke.  As late as two hours ago, many liberals were losing their minds, calling the Court ‘dishonorable’ and a ‘Banana Republic’.  Justice Roberts yesterday was a pariah…today a hero…at least to the media.

Another point.  CNN initially got the story wrong.  But, the most interesting development concerning the Supreme Court’s ruling when it was released was not the initial inaccurate media reports that the mandate was invalidated, but instead the reaction from the mandate’s supporters on Facebook: in about three minutes, the Court went from a bunch of pathetic political hacks to jurists of great intelligence and wisdom.

On the other hand, you do not see such insults hurled at the court from the Right.  This morning after the ruling, do you hear conservatives calling the court ‘jackals’ or ‘without honor’?  No.  The majority of conservatives disagree with the ruling, but move forward.  Liberals are the one without honor in this issue.


My final thoughts?  Ultimately, politically this may matter a lot, as it will likely improve Romney’s arguments of Obama being a tax and spend liberal who will continue to grow government regardless of its long term effects on our financial outlook.  It will also however harder Tea Party support around Romney, and likely unites the conservative base once and for all.

Legally and practically, I have to say I prefer winning this battle in Congress rather than in the Supreme Court.  The public is on our side in this issue, by a 2:1 margin.  If we can’t win that argument for more individual rights and freedoms, we don’t deserve to be a political movement.  Furthermore, I have long argued the worst thing about the abortion issue was that is was not done by legislative action, but by Court fiat.  The same goes here.  The public will accept legislative change much easier than it will accept five unelected jurors determining how their lives are led.

So basically, nothing has changed.  The fight goes on.  And battle on in that fight is to elect Mitt Romney President of the United States.

Cross posted at Neoavatara