One can forgive CNN for reporting Thursday's health care verdict incorrectly on the first try. When Chief Justice John Roberts' opinion stated that Obamacare's requirement that all Americans purchase insurance "is not a valid exercise of Congress's power under the Commerce Clause," it seemed like an obvious conservative victory -- he was striking down part or all of the law. Instead, Roberts joined with the liberals on the Court and adopted a rationale for keeping the mandate that nearly every other court had rejected to date. They ruled that the mandate could be construed as a tax, which makes it justifiable under Congress' enumerated constitutional power "to lay and collect taxes."
Conservatives were furious, and already Roberts has been skewered (justly, for the most part) by quite a few conservative commentators and editorialists. But here is our advice on how to take the decision: Don't panic.
Yes, it is disappointing, but it is not the end of the republic. The ruling even contains some good. And besides, it just puts conservatives right where they expected to be a few months ago, before the administration's hapless performance in oral arguments gave them false hopes.
This legal challenge to the health care law's individual mandate was never expected to amount to much. One year ago, no one would have thought it would persuade the fickle Justice Anthony Kennedy, or come within one vote of striking President Obama's entire health care reform law at once.
More importantly, the case did produce two small but real victories. First, the Roberts opinion establishes, in a major case, a clear limit on Congress's power to regulate interstate commerce -- the very power which has, for decades, served as a catch-all justification for the expansion of big government into areas the founders would never have imagined. Although it sets a poor precedent for abuse of the already-much-abused taxing power, the expansion of government through that channel is both politically and legally more difficult. The more recent precedents restraining federal power -- Lopez and Morrison -- are not only safe, but stronger because of this case.
Second, the legal clarification that the individual mandate is, in fact, a health tax on the uninsured means that it will be much easier to repeal, if Republicans can only win control of the Senate in the next election. Many parts of the health care law were already vulnerable to a simple majority vote in the Senate through the reconciliation process. Now the mandate -- or rather, the health tax -- is one of them.
Obama dodged a bullet on Thursday. A ruling against him would have been politically crushing, bringing about the sudden destruction of his only major and lasting accomplishment in office to date. But as disappointing as it is, the Court's decision to uphold Obamacare just means that conservatives now face the battle they had always expected to fight in 2012. It is the same one they began in 2009 and 2010. And they have enjoyed considerable success to date because the law was unpopular and has become more so the more Americans learn about it.
The health care question will be decided at the ballot box this November. This reality underscores the importance of the coming election, and it should motivate the Right to engage as it never has before.