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Friday, June 29, 2012

Roberts Too Clever By Half

And his supporters by more than half.

On Thursday morning, in the most anticipated Supreme Court ruling in recent American history, Chief Justice John Roberts sided with the Court's four liberal Justices to uphold Obamacare's "individual mandate" as a tax, even while Roberts agreed with the four conservative members of the Court that the mandate would be unconstitutional if considered only based on the Commerce Clause.

The liberal mass media began immediate preening for their president, with the New York Times calling the ruling a "victory for Obama," the Washington Post proclaiming "a win for Obama today," and MSNBC announcing "a dramatic victory."

They may be right, but the decision may equally turn out to be a pyrrhic victory for President Obama, motivating conservatives across the country and pushing independent voters along with skeptical conservatives and libertarians fully into the arms of Mitt Romney.

Since the Court found the mandate constitutional (despite an embarrassing headline by CNN to the contrary), it rendered moot challenges to other important aspects of the Act, including guaranteed issue and community rating (requiring insurance companies to issue insurance to everyone regardless of pre-existing conditions and without considering most factors specific to a given applicant other than age and tobacco use).

The only aspect of Obamacare which was overturned, on a 7-2 vote, was the provision that would strip a state of its existing federal Medicaid funds if the state refused to comply with the law's provisions to expand Medicaid.

In opening his reading from the conservative Justices' dissent, Justice Anthony Kennedy, who just relinquished -- though perhaps unfairly -- the title of most suspect conservative on the Court to Chief Justice Roberts, noted "In our view, the entire Act before us is invalid in its entirety." I agree entirely.

The Court's majority found that the mandate is constitutional as a tax, with the implication being that Congress is allowed to impose almost any tax it wants to (other than things like poll taxes which impede fundamental rights of Americans). The dissenters disagreed: "Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs."

Regarding mandating of healthy young people to buy insurance to mask the costs of the rest of Obamacare, the dissenters were not shy: "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws… spare neither sex nor age, nor high nor low, nor sacred nor profane.'"

The Court's dissenters also noted that the law was specifically passed with the mandate as a penalty, not a tax: "We cannot rewrite the statute to be what it is not. Although this court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ... or judicially rewriting it." Critics of the majority's decision will say for the foreseeable future that Chief Justice Roberts rewrote Obamacare to save it. Michael Carvin, who argued against Obamacare before the Supreme Court, noted dryly, "I'm glad he rewrote the statute instead of the Constitution."

Carvin's summary of the Supreme Court's ruling was on target: "What the Obama Administration… thought they were doing was completely unconstitutional; what they lied to the American people about was constitutional.… Unfortunately they got away with that bait-and-switch. A fraud has been perpetrated on the American citizenry."

In oral arguments before the Supreme Court, the administration's attorneys argued -- as they knew they had to -- that the mandate was constitutional as a tax. This despite the fact that Democrats passed Obamacare by stating specifically and repeatedly that the mandate was not a tax, including a testy response by President Obama himself to unusually challenging questioning by ABC's George Stephanopoulos in 2009.

As recently as a few months ago, President Obama's budget director said in a Congressional hearing that the mandate is not a tax, with Health and Human Services Secretary Kathleen Sebelius saying "it operates as a tax, but it is not per se a tax."

If the bill had been marketed to members of Congress and the public as a tax, it is unlikely that even the Cornhusker Kickback and the Louisiana Purchase would have been enough to pass the law, despite the large Democrat congressional majorities at the time. Senator Lindsey Graham (R-SC) said that "if it had been seen as a tax, they wouldn't have gotten ten votes, much less sixty."

As for those Democrats in Congress who have argued, and may continue to argue, that the Obamacare mandate is not a tax, Graham said "they either don't know what they're doing, or they lied to us. So this is a huge issue in the fall." Graham called for every Congressional Republican who is up for election to ask their Democratic opponents whether they support this tax increase; given that Democrats have little choice but to support Obamacare, this is the political equivalent of asking someone if he has stopped beating his wife yet, and a solid political tactic.

Thus, the fact that the Court found the mandate to be a tax offsets some of the political gains for Obama. The question is how much.

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