I’ve held off posting on the recent Supreme Court decision to uphold most of the Affordable Care Act, commonly known as ObamaCare, because I don’t want to add to the noise unless I can contribute a unique perspective. But it’s been more than a week, and I’m ready to share my thoughts, including something I haven’t seen anywhere else (point #5 below).
#1 I Understand the Roberts Argument
I understand how John Roberts came to his decision to uphold the individual mandate by viewing the penalty as a tax. I think the reasoning is strained, particularly when he says it’s a penalty to get through the Anti-Injunction Act but a tax for the sake of upholding the law, but I see how he came to his decision.
So, even though I disagree with the ruling, I can see the other point of view. Contrast this with the left, many of whom would not even acknowledge that the arguments against the mandate were worth considering. Of course it’s constitutional, they said, because congress can regulate commerce! Democrats weren’t even willing to consider the conservative side of the argument, which is sad considering how close the law came to being overturned.
#2 ObamaCare is Unconstitutional Even if it’s the Law of the Land
I think all Americans are capable of interpreting our Constitution for themselves, and we can all determine what is or is not constitutional. I think our presidents and members of congress also have this ability, and do not have to wait for the Supreme Court to tell us what’s constitutional.
As such, I continue to believe that ObamaCare is unconstitutional. Mandating the purchase of health insurance, requiring that individuals enter into a legal contract (which is what your insurance plan is) with a private company, is outside the enumerated powers of the federal government. Nonetheless, I recognize that ObamaCare is the law of the land and is constitutional as far as a technical reading.
#3 Big Win for Obama and a Political Win for Romney
If ObamaCare had been overturned, I would have proclaimed a huge defeat for Obama, so I must acknowledge that having it upheld is a big win. Even the strained arguments from John Roberts will not change the fact that Obama’s signature initiative has been upheld and he has won this particular fight.
I also think this turns into a likely political win for Mitt Romney. While I was afraid that having the Court overturn ObamaCare would turn the November election in Obama’s favor, I now think having it upheld tilts the election towards Romney. This ruling will invigorate Republicans between now and the election, which can only benefit Mitt Romney.
#4 Conservatives are Fooling Themselves with Silver Linings
I really, really, really, hate what John Roberts has done, so I understand the desire to look for silver linings – something to help me sleep at night. But Republicans are fooling themselves that the Court’s decision will benefit the country, even in the long-term. I would have mocked Democrats who tried to spin the opposite verdict into a win for the left, so how foolish do we look on the right?
Sure, Roberts quashed the Commerce Clause with the support of four liberal justices, but he also expanded congress’ taxing power. Maybe he boosted the credibility of the court by showing that not all rulings have to be along party lines, but he harmed his own credibility and that of the court by making it look like he changed his vote for reasons that have nothing to do with the letter of the law. Maybe there are silver linings to be found, but we need some time and distance to truly know for sure.
#5 The Four Liberal Justices Were Politically Conniving
Here we go, my one original thought, which I have seen nowhere else. As I understand the opinions and dissents, four liberal justices voted to uphold ObamaCare under the Commerce Clause and five justices voted against the Commerce Clause power. Everyone is talking about John Roberts’s political maneuvering, but this has shielded the political conniving on the part of the four liberal justices.
Roberts refused to go along with the Commerce Clause argument, but he apparently wanted very much to uphold the law. So he came up with this strained argument about congress’ power to tax. The four liberal justices, as we know from the Court transcripts, did not find the tax argument to be compelling. Yet they decided to vote in the majority with Roberts to uphold ObamaCare.
The only explanation I can think of is that these four liberal justices knew they would uphold the law no matter the reasoning. None of them thought the tax argument would hold water until they saw that it was the only argument that Roberts would get on board with. So instead of stick to their guns – namely the Commerce Clause argument that they truly believed was sufficient – they signed on to an opinion that they didn’t agree with until it served their purposes.
I call this politically conniving. This wasn’t an evaluation of the law; it was an effort to achieve an outcome they desired by any means necessary. I respect the three conservative justices and Kennedy who identified the correct ruling (in their minds) and stuck to it. I don’t respect the four liberal justices who used whatever means necessary to get an ideological win.
BOTTOM LINE: ObamaCare was a bad law before the Supreme Court ruled and it's a bad law now. I support free market health care reform and full repeal of the Affordable Care Act.