This is a great day for President Obama. The argument against Obamacare from constitutional norms has been fatally wounded to the extent of winning over persuadables. To the extent that pesuadables (especially fairly low information persuadables), feel in-their-bones that the government doesn’t have the constitutional power power to tell them to buy health insurance, the endorsement of the Supreme Court is going to allay some of their concerns. Conservatives who strongly believe it unconstitutional aren’t changing their mind, but they aren’t a swing vote. The Supreme Court endorsement of the constitutionality of the law is the best public relations news Obamacare has ever gotten.
It also damages Romney in other ways. He can no longer distinguish Romneycare from Obamacare on the grounds that one is a legitimate use of state power and the other is is an unconstitutional use of federal power. Thanks to the Supreme Court, both Romneycare and Obamacare are now constitutional schemes of coverage mandates + individual purchase mandates + guaranteed issue + community rating. Romney can try to explain why what he thinks is good for Massachusetts isn’t good for America. Not impossible, but not easy, and I would guess probably beyond Romney’s power.
June 28th, 2012 | 9:41 am
Oh well. Now I have to vote for Mitt. I won’t feel good about it in the slightest, but getting Obama out of there justifies all now.
(This despite the fact that I remain completely aware of the fact that my vote is meaningless for all sorts of reasons.)
June 28th, 2012 | 10:37 am
Question: Doesn’t this mean that the mandate can now clearly be repealed by Congress with just 51 votes? I.e., taxes are budgetary issues that are not subject to filibuster, right?
June 28th, 2012 | 11:17 am
My rock song choice for Justice Roberts is:
http://www.youtube.com/watch?v=AcSm0ShU8Y8
There is just something too strained-ly “respectable” about his always seek the narrow-reading philosophy. We might call it deference, but all it really does is kick the constitutional can down the road. And worse, in the cause of deference (to remind us all of Congress’ role in WHO INTERPRETS the Const.), Roberts winds up needlessly confusing the the HOW TO INTERPRET question. You saw this big-time in the Hein case of 2007, on standing. Although initial reports of today’s decision indicate he is confusing things less on this than he did with Hein; i.e., he at least says outright that as a command not a tax, the mandate is an unconstitutional use of the commerce clause.
I obviously haven’t tangled with his and the dissenters’ 50-pages each opinions (groan), but it may come down to the strange idea that Roberts winds up in effect re-writing the law’s description of its provisions, which is close to re-writing the law itself, so as to find the way it could be seen as constitutional. A strange way to exhibit spirit of deference, and once again, needlessly confusing the public, needlessly making our justices the priests of an arcane cult.
June 28th, 2012 | 11:51 am
Brian, I guess it would be up to the Senate parliamentarian and the majority of the Seante to decide if it was a tax or a penalty for purposes of reconcilliation (its a tax, no a penalty, it slices, it dices.)
Carl, yes, he strained to turn a penalty into a tax like when he wrote “The payment is not so high that there is really no choice but to buy health insurance…” He didn’t want to be responsible for strking down the law.
June 28th, 2012 | 11:52 am
Like Carl, I’m not looking forward to working through the opinions, but my initial reaction is quite different from yours, Pete.
Roberts has done everything he can to remove the Court honorably from the dispute and remind the American people of their power under the Constitution. In the best spirit of that classic essay we should all continue bringing to our students’ attention–James Bradley Thayer’s 1893 “The Origin and Scope of the American Doctrine of Constitutional Law”–Roberts has refused to take action on behalf of the people. We all know the line taken by Scalia, from the dissent, in the libertarian rulings of Kennedy on issues of importance to social conservatives: how dare the Court stand in the way of democratic majorities and overturn laws which are not clearly unconstitutional? (I have a feeling I’ll be pilloried for implying that ACA isn’t clearly unconstitutional, but so be it) It seems like Roberts is just renewing here from a prominent majority opinion the jurisprudence of Scalia’s dissents. I’ll say more after I’ve read the opinions, but I fear more than this little, at this time, would be by much too much.
June 28th, 2012 | 12:03 pm
Mr. Ramsey, that would cut more ice with me today if Roberts hadn’t voted to overturn the Stolen Valor law (and I think I agree with him on that) and to partially overturn the Arizona immigration law.
June 28th, 2012 | 12:19 pm
My friend Ramsey urged me to jump in here. I have not had the time to read the opinions yet and my thoughts are still perculating. I just wanted to point out that while Roberts voted with the majority in Hein, Alito wrote the opinion. So to make statements about Robert’s jurisprudence from the Hein case might be a bit problematic.
June 28th, 2012 | 12:41 pm
My friend Ramsey urged me to jump in here. I have not had the time to read the opinions yet and my thoughts are still perculating. I just wanted to point out that while Roberts voted with the majority in Hein, Alito wrote the opinion. So to make statements about Robert’s jurisprudence from the Hein case might be a bit problematic.
June 28th, 2012 | 12:45 pm
Two corrections to the above:
1) While Roberts was part of the narrow-ruling Hein majority, it was actually Alito who wrote the majority.
2) There is apparently some language in the law that speaks of the penalty as a tax. Otherwise you would not have had the Tax Notes special report by Willis and Chung, (7/12/2010) arguing that “The act’s penalty is styled as a tax. Congress arguably did this to finesse commerce clause problems.” These Tax Notes writers wanted Obamacare overturned–their argument was that assuming the penalty for not purchasing really was a tax, it was still unconstitutional because it was not an apportioned tax (see Article I, sect. 9). I’ve no opinion on that argument–what matters here is that these close readers of the mandate provisions of the law, say that in some way (regardless of what Obama said) it styled itself a tax.
June 28th, 2012 | 1:04 pm
Paul Mirengoff at Powerline has a good summary of Robert’s reasonable (yet chicken) decision: http://www.powerlineblog.com/archives/2012/06/what-chief-justice-roberts-said-about-the-individual-mandate.php
June 28th, 2012 | 1:20 pm
Pete, a very reasonable analysis. I will go back to discussions on this blog during the primaries. I believe I made the case at some point then that healthcare will be an issue and that it could be a winning issue for Republicans, and that Romney however would have a hard time running on it, to say the least, but that there were other candidates, for example Santorum, who could run credibly on it. And there were national polls at the time that had Santorum running very close with Obama. High level Republicans however focused on the fact that Santorum didn’t yet have enough “organization” and that he’d made 3-4 major gaffs. And probably many had poured money and time into Romney’s campaign. They obviously decided to shut Santorum down after Illinois. I hope Romney wins in November and I believe he would work to repeal the ACA out of expedience. But for him to run on health care will be tough. This spring Romney supporters confidently told me that the SCOTUS would overturn the ACA and that the only issue will be the economy. Now, if there’s any uptick in the economy …I think (but hope not) its “game over” for Romney.
June 28th, 2012 | 2:31 pm
John, Santorum would have been better on health care than Romney, but Santorum revealed himself as too undisciplined when the pressure was on. He wouldn’t be mocked for having signed a state-level version of Obamacare. But if the post-Iowa campaign is any guide, he would be facing biweekly self-created public relations disasters as he put his foot in his mouth or engaged in self-destructive arguments where he comes out the loser even if he wins the point in dispute (which he sometimes won’t.)
I never assumed the Supreme Court would strike down Obamacare (though I did think that this knife in my back would have Anthony Kennedy’s fingerprints.)
June 29th, 2012 | 5:02 pm
The individual mandate is only a small part of Obamacare. The notion that it is the ONLY partthat matters is a distortion based on the fsact that it was almost the ONLY part that couldbe attacked on constitutional grounds. There is PLENTY of stuff in the law that is just stupid, even if not unconstitutional.
Voters were lazily assuming that the court would take care of this infection for them, but now they have to realize that it is going to become a flesh eating bacteria on our economy if we don’t amputate it immediately. And that surgery has to be done by voters, en masse, kicking out Obama.
June 29th, 2012 | 5:13 pm
“The individual mandate is only a small part of Obamacare.” Small but important as it makes (or intends to make, or pretends to intend to make) Obamacare’s guaranteed issue and community rating provisions sustainable. It also raised troubling questions of the extent of federal power.
July 2nd, 2012 | 10:16 am
[...] America. Not impossible, but not easy, and I would guess probably beyond Romney’s power….Pete Spiliakos, Postmodern [...]
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