ObamaCare and the Long Game

The Supreme Court’s ruling yesterday has garnered a number of ideas for me. I’ll admit that I was a little bit shocked when I heard that ObamaCare had been upheld. The lawyers who argued against ObamaCare were very, very good ones, and the pummeling that they administered to the Obama administration’s lawyers was so thorough, I thought, that I wasn’t even sure that the court would split along the traditional 5-4 line.

Alas. You can read the whole thing here (and I encourage you to do so).

I wonder about Roberts’s political calculations here. What I think happened is that Roberts took a two-pronged approach to the issue. Instead of calling it a mandate, the court ruled that ObamaCare is tax. This is not going to bode well for the Obama administration’s upcoming campaign once the dust settles. The second line of attack is actually a defensive one: the SCOTUS already issued Citizens United in 2010 and if the SCOTUS had struck down ObamaCare a mere two years later the Left would have been electrified. Roberts is playing the long game.

ObamaCare is now actually seen for the huge tax increase that it is. If Republicans are smart (and they are, despite the Left’s attempts to portray them as otherwise), they’ll go after Obama on this, and they’ll go hard. ObamaCare is by no means permanent, either. The Congress could very well dismantle it before it takes effect in 2014. 

A big victory, unseen at this point, is the recognition of the libertarian lawyer’s arguments by the court. The individual mandate is unconstitutional. The states are sovereign and have no right to be bullied. What these lawyers did was succeed in drawing a big line around the federal government once again, a la the federalists of 1789. However, I would have been content to see the whole damn thing struck down and the Left get even angrier if it meant that taxes would not go up. An angrier Left would have just made it easier to show the movement’s true, authoritarian colors, and that would have made me even happier.

Roberts’s calculations aside, I still have this lingering question: what good is the long game if everybody is paying higher taxes anyway? Yes, the New Deal-era is being dismantled piece-by-piece, but this was a great opportunity to strike yet another devastating blow to that old fascistic relic. I’m disappointed Roberts didn’t pull the trigger.

Randy Barnett, one of the lawyers in the case, gives his thoughts.

Will Wilkinson has more in the Economist.

Longtime reader Hank Moore writes his thoughts here.

Addendum: I am in the process of moving right now so my blogging is going to be sporadic and half-assed. Here is the money quote from CJ Roberts that essentially breathes new life into our federal system:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

This is a big victory for federalists, though it’s hard to see right now. Ever since the New Deal era Congress has been allowed to do virtually anything it pleases in regards to regulating the economy under the Commerce Clause, so this rejection by the court is important for those of us who favor federalism over centralized power and choice over coercion. The logic Roberts uses to get from his point here to how the ACA can be justified as a tax is disheartening, but it can be better understood once his decision is put into broader context (outlined in the original post).

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