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What Did SCOTUS Just Do?

by on June 28, 2012

Was today’s Supreme Court Obamacare decision a win for conservatives or a loss? It depends on what you were rooting for.

supreme court

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. guitargod permalink

    all a ruse ….. the fix was in a yr ago……

  2. Anonymous permalink

    While I freely recognize SOMETHING had to be done to fix the health care system and to get coverage for those who need it, this Obamacare is nothing but a sham.

    It demonizes the healthcare providers while letting the scumbag lawyers continue their free raping of the medical system with their unfounded malpractice suits. This bill only made things MUCH more expensive, MUCH LESS efficient and had managed to initiate the end of the world’s best medical care system.

    Ask yourself, if Obamacare is so great, then why was it forced down our throats through back room deals and bribes? If it is so great, then why is CONgress exempt from it? If it is so great, why are there so many waivers being given to the supporters of the left? If it is so great, then why does more then half of America despise it?

    It is a sham supported by big pharma and lawyers and very few others because they are really the only beneficiaries.

    Obamacare, a scam on the American people shoved up your backsides for the financial gain of a few while actually REMOVING more coverage than was gained. Way to go, Pelosi/Reid/Obama. Way to strangle this country with even more bureaucratic bull shine.


    Roberts ruling rescues Obama from his own words…

    Chief Justice John G. Roberts Jr. ignored President Obama’s words, and instead found a way to uphold his health care law in Thursday’s health ruling.

    Despite the president’s repeated assertions during the debates in 2009 and 2010 that the IRS penalty imposed on those who don’t obtain insurance wasn’t a tax, Chief Justice Roberts said it was, in fact, a tax — and that the individual mandate is constitutional as an exercise of Congress’s broad taxing powers.

    But at the same time the chief justice also delivered a blow to Mr. Obama and others who have claimed broad powers under the Commerce Clause, saying Congress could not have used that to compel Americans to buy insurance. In doing so, he set a real limit on Congress’s powers under that clause, and ended a century of expansion.

    “The most important thing at stake in this case was whether Congress had the Commerce Clause power to make everybody go into business with a private company, and there was not a majority for that. We’ve turned away the most dangerous claim,” said Georgetown UniversityLaw Professor Randy Barnett, who has been fighting against Commerce Clause expansion for years and was a leading intellectual light for the health law’s opponents.

    Thursday’s decision amounted to a 4-1-4 ruling, with four liberal-leaning justices saying the law should be upheld on the Commerce Clause and taxing powers and four other justices saying it exceeds government limits no matter which power is cited.

    That left the chief justice in the middle.

    His controlling opinion tried to strike a careful balance, affirming Congress’s powers but denying them the limitless tool of the Commerce Clause.

    At root, he said the government cannot force individuals to engage in commerce: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

    But he said Congress’s decisions under the taxing power does apply — and said it doesn’t matter what politicians call it during the debate.

    And he said the taxing power doesn’t have the same compulsion because it gives Americans a choice — perform an action or pay more money to the government.

    “Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new,” he said.

    “Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one,” he wrote.

    In defaulting to the taxing power, the court rescued the Obama administration from itself — and in some cases the justices even reversed their own take on the law compared to March, when they held oral arguments.

    “Here we have a case in which Congress determinedly said this is not a tax,” said Justice Elena Kagan, as she and the other justices prodded the government’s chief lawyer over the issue during the three days of arguments.

    At another point Justice Ruth Bader Ginsburg also chimed in that she didn’t believe the government could rely on taxing power.

    “A tax is to raise revenue, tax is a revenue-raising device,” she said. “This penalty is designed to affect conduct. The conduct is [buying] health protection, [buying] health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.”

    The health care law requires most Americans to obtain health coverage, and imposed an IRS penalty on those who fail to do so. During the debate, Mr. Obama said that wasn’t a tax: “For us to say you have to take responsibility to get health insurance is absolutely not a tax increase.”

    By the time the lawsuits started to roll in, the administration had changed its argument, asking courts to uphold the law’s mandate as a valid exercise of taxing power.

    Lower courts rejected that argument and at oral argument before the Supreme Court, even the chief justice seemed incredulous.

    “You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?” he asked Solicitor General Donald B. Verrilli Jr.

    On Thursday, however, the chief justice embraced that argument.

    “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized 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,” he wrote

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