Chief Justice Roberts, in writing the final Obamacare opinion, made an argument for Obamacare that Obama and his minions refused to: It’s a tax. So, Justice Roberts found that Obamacare wasn’t okay under the Commerce clause but it was a-ok under the constitution’s provision allowing Congress to levy taxes.
Obamacare is, according to Justice Roberts, the biggest middle class tax hike in history and therefore, constitutional.
Leftists praise the ruling. Conservatives, many of them, are disheartened.
And then there’s these guys who look admiringly at John Roberts for being politically savvy and outmaneuvering the President. You can read Tom Scocca of Slate here, Ezra Klein of the Washington Post here, and George Will here.
Ezra Klein summarizes the Evil Genius argument:
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
I am not persuaded by this thinking, more on why in a minute.
Erick Erickson had a more reasoned response to the ruling (and I have noted that many conservative lawyers are walking this line, but as I’ve said before, and will repeat here, lawyers don’t think like normal people. They think in the constraints of the law and not in the constraints of morality — what is right and wrong — and this skewed perspective can be technocratic and miss the overarching point. I’m not sure that my conservative lawyer friends are quite missing the point, but I feel murky about this parsing). You can read Erick’s nuanced view here.
One point Erick makes is that Roberts is trying to keep the Supreme Court above the partisan fray. That is all noble but is the opinion constitutional?
Sorry if this question makes me literal, but that’s all I care about. The constitution being upheld is of paramount importance. By attempting to be “non-partisan”, Roberts is conceding that he was influenced by President Obama and the left’s fit-throwing. The toddlers won and so the finding becomes a partisan affair.
Today, Ben Domenech came on the Malcolm & Melissa podcast with Andrew and Me and he noted that if Roberts was politically influenced (and it seems he was), that the Right is going to have to reconsider its longstanding aversion to trying to bully courts into decisions the way the Left has traditionally done. He sees that outcome as profoundly troubling. [Aside: It was a great podcast and I'll link it as soon as it's produced.]
The Obamacare ruling makes the hated legislation an election and taxation issue. Some say that Roberts delivered the White House to Romney.
Consider this: Only 47% of American workers even pay Federal Income Tax. The non-tax payers have little vested interest in caring about this tax hike. It won’t affect them. As Avik Roy of Forbes pointed out, 67% of Americans already have subsidized health care. The abused American tax payer is already in the minority. The Democrats were playing the odds with this legislation and they know it. They gambled and time after time, they’ve won.
In addition, the Evil Genius argument not only counts on the American people and Congress to overturn Obamacare, it assumes that Congress will be bound by a tightened Commerce Clause interpretation.
When has a Democrat majority felt constrained by, well, anything? Look at how they were willing to ram Obamacare down America’s throat. There is no constraining statists. The Commerce Clause won’t do it, either. In addition, Roberts gives Congress essentially unchecked taxing ability.
Will a Republican Senate and White House overturn Obamacare now known as Obamatax?
If, if, IF.
From the beginning, I’ve felt that if Obamacare passed, repealing it would be nigh to impossible. No, this Supreme Court decision didn’t surprise me.
And in this way, Justice Roberts is right: Voters should be careful about who they elect. Voters shouldn’t be so cavalier about voting for big government Dems.
Voters, and Congress who represents them, need to be more circumspect and take responsibility.
Maybe that’s why I’m despondent: Personal responsibility seems like a quaint, old-fashioned American notion. Trusting Congress is folly.
This video captures it: Excellent job Ben Howe: