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The Best, Rightest Thing.


June 28, 2012: Depending on your perspective, it may be a day that will live in infamy, or a day that will be remembered as a great one. Conventional wisdom might hold that the Supreme Court’s split decision to uphold the Obamacare boondoggle, by construing the “penalty” in the individual mandate as a tax, was a huge win for President Obama.

Many conservatives are sickened that Chief Justice John Roberts not only voted with the leftists on the bench, but actually wrote the opinion upholding most of the wildly unpopular law. They take the vote as a betrayal, a personal slap. However, these people may not have analyzed the decision carefully enough.

As a preface to my analysis, please understand that I hate this horrible law. I think that it is bad for the economy, is bad for the fiscal future of this country, deceptively enacted, deceptively promoted, reduces the quality of life for virtually everyone affected by it, and encourages the worst in people by giving them a sense of personal entitlement to have others pay their way for them. I fear that the preceding sentence may be an understatement.

That said, please consider the following things:

First, the Chief Justice was joined by the other Supreme Court conservatives in saying that the Commerce clause is limited. This is a huge victory for the right. Congress does not possess a plenary police power. The Feds cannot order you to eat broccoli, drive a smart car or wear Birkenstocks. Many pundits (George Will comes to mind) recognize that this is a huge and important holding that will be cited over and over for decades if not centuries. It reins in the wildly leftist Wickard v. Fillburn ruling and makes it clear that Congress cannot force anyone to engage in commerce, or regulate a person’s choice to refrain from interstate commerce.

I theorize that the Chief Justice voted to uphold the law in order to assign himself the opinion so that this holding would be written into the main opinion – a binding precedent – and not placed into a dissent, which has virtually no precedential value.

Second, the Chief Justice sliced through the Democrats’ word games and called a tax a tax. Congress has the power to tax, including taxes it finds promote the “general welfare.” The Chief, along with the leftists on the court, found the penalty for failure to buy insurance to be a tax. In fact, all of the various fees in Obamacare are found to be taxes, meaning that Obamacare, which was sold as not tax-accretive, actually enacts 21 new taxes! The Chief Justice applied a variant of Gertrude Stein: A tax by any other name is still a tax. This makes sense. If you want to exempt yourself from the tax, then you buy insurance. It’s no different than levying an income tax, with a deduction for health insurance premiums.

Some conservatives would angrily retort that there is no real difference between a penalty for failing to engage in commerce, and a tax from which you can exempt yourself by buying health insurance. Regretfully, that is an inaccurate equation. First of all, the political reality is that everyone hates tax increases. They are radioactive in Washington. The Chief Justice has effectively hamstrung the liberal agenda to be implemented by the most unpopular mechanism in the Constitution.

If a newly proposed law required every American to buy and eat five pounds of Broccoli per month or pay a $3 tax for any month in which that wasn’t done, what is the chance of that passing through both houses and being signed by the President? Moreover, remember that the Constitution requires all tax bills to originate in the House of Representatives, where popular discontent is more rapidly felt than in the Senate, because of the larger size of the body, and especially because of the two-year terms served therein. The ideology takes a backseat to political survival.

Even now, the Chief Justice convinced the leftists on the court to rename the “penalty” into the tax that it actually is, thus giving the GOP the ultimate talking point: “Mr. Obama raised 21 new taxes in his healthcare bill alone – the biggest tax increase in history – while decent people are begging and pleading for jobs! Stop him from destroying this economy! Vote for Mitt Romney!” Mr. Obama has to try to spin the taxes, and the deceptive wording in the bill. I don’t see how that can plausibly be done.

Third, the Chief Justice has supercharged the GOP voting constituency. Since the “train wreck” oral arguments on this bill, GOP strategists have been worried that an all-but-certain repeal would leave them with an apathetic voter base. Now the Democrats have the apathy on their side, and the GOP constituency has been supercharged. I don’t just mean the GOP base; I mean every single voter who hates Obamacare is now a likely Romney supporter. Mr. Romney long ago promised repeal and even promised a 50-state waiver on inauguration day. Remember that 54-60 percent of the people fit that bill! What was looking to be a close popular vote may have just tipped Mr. Romney into a 1980-style landslide.

Will Mr. Obama enjoy a “bump” in approval or poll numbers? With some of the wildly skewed polls out there, anything is possible. However, please remember that the poll that counts happens in November.

This is not lost on GOP strategists. Ari Fleischer was quoted as saying that the Supreme Court decision is on appeal to the American voters and that oral arguments are under way. These words are well taken. The 2012 elections are now primarily a referendum on Obamacare.

Fourth, The Chief Justice stopped the usurpation of states’ rights. The Medicaid expansion was thrown out. The Federal government cannot extort the states into massive spending by threatening to pull other money away from them. This is the biggest boon to states’ rights ever since the concept fell out of favor when the Democrats tried to use the concept to enshrine racism, Jim Crow, and voting rights abuses. This decision is also a binding precedent, meaning it binds the lower courts and the Supreme Court will honor itself via stare decisis. The states have good reason to be thrilled.

Finally, The Chief Justice left the legislation to the Legislative Branch! For those of us who angrily decry an activist bench, please remember that the Chief Justice is a judge and not a legislator. Chief Justice Roberts did nothing to hide his personal contempt for the law; just because the law is manifestly bad does not mean that it is not constitutional. To strike down a bad but constitutional law usurps the legislative prerogative. The Chief Justice, in a shining example of integrity, refrained from the activism and held to the law.

It is true that the conservative wing of the court dissented from this finding, with Justice Scalia making a forceful argument that questioned the majority holding. The Chief Justice saw things differently. All of the justices, leftist and rightist, are people of the utmost integrity and class. Disagreements happen. One might have looked at the tax position and held that the Anti-Injunction act barred the court from reviewing the law. One might have held that the penalty was not called a tax in the bill and the label prevailed over what the majority saw as the substance of what was enacted. There was no treachery on any justice’s part; to say differently slanders the court and its justices.

That said, the ball was placed back into the hands of the elected and accountable. Congress cannot duck behind nine lifetime appointees in black robes and blame the justices for striking the law down. Nor can President Obama blame the Supreme Court for his lack of a record. The Chief Justice gave Mr. Obama a solid record on which to run: 21 new taxes (mostly on lower income people), trillions in unfunded bills, more debt than Washington through Bush 43 combined, cronyism to new heights (depths), unpopular legislation rammed through the Congress by shady means, and an economy on the brink of ruin.

The pressure to repeal is building to a fever pitch, even before the decision is two days old. Mitt Romney raised well over $4 million in 24 hours. The House will have a formal repeal vote in a week.

The Conclusion

The Chief Justice followed precedent. A law is presumed Constitutional, and may be affirmed on any basis found in the record. At the same time, he struck new precedent for limiting the Congress’ power via the commerce clause, and protected the states from a horrific unfunded mandate. He called a tax a tax and slapped President Obama with the biggest tax increase in history, mostly felt by lower-income citizens. He said that the Supreme Court will not legislate for cowards in the Congress; they can do that for themselves, in a move that showed outstanding integrity and love of our laws.

I rise and applaud the Chief Justice for doing the best, rightest thing. Bravo!