OK, it’s hard to admit but my initial reaction to this morning’s Obamacare decision by the Supreme Court – a snide tweet branding Chief Justice John Roberts as another “gift” from President George W. Bush like the Medicare Prescription Drug benefit program – was embarrassingly hasty.
After reading and stewing about it all day, I’ve concluded that what Roberts has done is fundamentally shift the constitutional debate away from the liberal assumption since the Woodrow Wilson era that an Imperial Presidency and supine Congress can pretty much do as they please so long as it’s covered by at least one of those fig leaves known as the General Welfare, Necessary and Proper or Commerce clauses of the Constitution.
The new assumption is, thanks to Roberts, that at least two of those clauses in fact cannot simply be dragooned into the service of whatever a passing majority in Congress wants to do. And having shifted the meaning of those two clauses, courts will likely now have to view the other clause differently as well.
In other words, the Constitution means something today that it didn’t yesterday, at least in terms of constitutional precedent. It’s not a grand rout of liberalism from the field of battle, but the correlation of constitutional forces has now shifted under their feet in such a way that they must go over to the defensive on ground not of their choosing.
Further, the holding that Obamacare passes constitutional muster if it is understood as a tax may be an even more significant victory for conservatives. To understand why, which of these two words sounds more positive? “Benefit” or “tax”? Who is more likely to prevail – the advocate offering a positive benefit without having to explain in any detail how it will be funded, or the advocate who right out front says your taxes have to go up but, trust me, you’re going to love this new benefit?
Roberts has forced the entitlement state to drop its pretense that government entitlements are intrinsically beneficial and concede the brutal reality that they are in fact the application of force to take from some to give to others. As a practical matter, taxes cannot represent an unlimited power. That’s a genuinely new deal for welfare state advocates. and one that is not likely to adduce to their future success.
Finally, and perhaps most importantly, Roberts forces what is a profound assault on the nation’s constitutional framework hiding behind the false flag of humanitarianism out of the courts and tosses it into the political arena where the general sense of the community can resolve the outstanding issue.
As long as there are congressional elections every two years and presidential elections every four years, the American system will continue to give advocates of whatever stripe – you know, those “factions” Publius so feared – realistic hopes of eventually prevailing. When political questions are decided by a mere five black-robed judges, it can take generations – or a civil war – to reverse the damage (See Dred Scott, Plessy v Ferguson, NLRB v Jones & Laughlin Steel, Wickard v Filburne, etc.).
On balance, I believe the decision takes a giant step toward restoring the judicial efficacy of constitutionally limited government and drags New Deal liberals and progressives out from behind their pretense of being compassionate and virtuous. That said, it will still take some time for enough cases to work their way through the court system to allow the full fruit of the decision to be harvested.
And one more thought: During our civil war, battles that appeared lost on the first day were often won on the second or third day (Shiloh, Gettysburg). Those who see today as a loss should take heart because tomorrow the struggle will be on new and more promising ground.
Others have made this case far effectively and eloquently earlier today than I have here. See especially George Will, Larry Solum and Ann Althouse. But, having inadvisedly rushed to judgement earlier today, I wanted to make clear that upon further reflection the thing appears to me in a quite different light.
UPDATE: And let’s not forget the 7-2 part of the decision
The individual mandate understandably has received most of the attention today in the analyses of the Obamacare decision, but Timothy Dalrymple makes a couple of crucially important points in his post on five possible reasons to see a silver lining, beginning with the significance of the court’s rejection of the law’s threat to punish severely states that refuse to go along.
Specifically, the Court has likely strengthened the hand of the states to counterpoise federal power: “The administration’s claim that it could remove all medicaid funding for the states that refused to expand medicaid in the way the administration wants was rejected. The administration can condition new, additional funding on states’ cooperation, but not the preexisting funding. This is a big difference. It will be much easier for states to opt out of the medicaid expansion.”
And putting Obamacare under the taxing power of Congress may make repeal “easier to overturn by several orders of magnitude. The ordinary process, of course, requires 60 votes to overcome a filibuster in the Senate. But when it concerns budgetary matters, including taxes (like the Bush tax cuts), 51 votes are sufficient to put the law on hold for 10 years.”
That means, according to Dalrymple, “51 Republicans will be capable now of overturning [Obamacare] at least for 10 years (at which point it could be reviewed again). Fifty-one Republicans could have attempted this in any case, but now they can do so with much greater plausibility because this is a matter of taxing and spending and not regulation of commerce.”
You can Dalrymple’s entire post here.
UPDATE II: Why conservatives should scorn the Obamacare decision
There is a flood of excellent analyses out there today on both sides of the argument on whether Chief Justice John Roberts should be praised or damned. But if you read nothing else today, it should be the Examiner’s Philip Klein and his “Why Roberts deserves conservatives’ scorn.”
Let me tell you a bit about Klein. I know a lot of Washington journalists, think tankers, government officials and Hill aides, but none of them are as sharp on Obamacare as Klein. He is scary smart, knowing the issue, the law and the politics inside and out. So when Klein talks about Obamacare, I listen and so should you.
I think his strongest point is this, on Roberts’ rationale for viewing Obamacare’s individual mandate as a tax:
“Under Roberts’ argument, the mandate is kosher because it’s merely a tax on not purchasing insurance. His defenders on the right argue that it isn’t really setting a new precedent – Congress always had this power. As Roberts himself put it, ‘Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry… Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking,’” he said.
But Roberts is trying to equate a tax on something people do in order to get them to stop, whereas the mandate is a levy on something people don’t do in an effort to make them do it, according to Klein. So, he wonders, why did Roberts recognize “the distinction between activity and inactivity when it came to the Commerce Clause argument, but he didn’t grapple with the difference between so-called ‘sin’ taxes and a mandate penalty. To use smoking as an example, there’s a difference between taxing cigarettes and assessing a penalty on smokers who don’t purchase Nicorette gum (or some other product meant to help people quit smoking).”
Klein and I reach different opinions on the decision, but, as I said at the outset of this update, when he talks about Obamacare, I listen. You can read Klein’s complete argument here.