The spin has already started about the Supreme Court’s ruling on Obamacare. Obama Pelosi & Co are gloating (“It’s constitutional, b*tches”) and Republicans are saying “it ain’t so bad” and vowing to make the presidential election a referendum on the Obamacare legislation.
Now I need to say at the outset that I haven’t yet made my way through Roberts’ and Kennedy’s opinions but I’m looking forward to it. But I’ve read enough of Roberts’ words to be immediately struck by his genius.
To borrow a phrase from our president, let me be clear. I’m not saying he’s a genius because he gamed the system or because he somehow in partisan fashion set the Democrats up for failure. Instead, he is ingenious because he (1) remained pure to his conservative judicial philosophy while (2) reining in his liberal colleagues on the court to his view and (3) forcing the president and his allies to accept victory at the risk of being villainized for imposing the greatest single tax hike on the American people in the history of our country (which from a Republican strategist’s point of view offers the added benefit of allowing the president to declare victory only if he is also willing to accept the moniker of liar).
While Roberts had to understand that a vote against Obamacare would result in the united proclamation among the media and talking heads in Washington that the verdict was rigged and he is a racist, I don’t think Roberts wrote what he wrote because he was afraid of such slander.
I think Roberts wrote what he wrote because it’s what he believes. I won’t argue with whether he was right, but he is smart, thoughtful and he believes that it is not the Supreme Court’s job to legislate. That is a great starting point.
Having said all that, I do look forward to reading Justice Kennedy’s dissenting opinion. I’m not a Constitutional law expert, but I’m inclined to believe that it’s the Court’s minority that got it right as a constitutional matter. As a matter of law, it is hard to swallow that Congress can levy a tax (a) that the law’s drafters and proponents always insisted wasn’t one or (b) that is based on the inactivity of American citizens (for not purchasing health insurance–isn’t that really just a penalty that Congress is asking the IRS to enforce?). That kind of interpretation requires a special kind of judicial sleight of hand.
However, what it seems that everyone on the Court agrees on is that the individual mandate to purchase health insurance can only pass muster as a law if it is understood as a tax. Remember, Roberts wrote the opinion on behalf of the four “liberals” on the Court, while Kennedy wrote the dissent for the “conservatives.” The Supreme Court at least has drawn a line in the sand that, contrary to Pelosi’s idiotic remarks, there is a limit (perhaps theoretical) to the federal government’s powers.
It may not be long, after the initial glow of victory has begun to fade, before Obamacare advocates start to realize that the Court’s decision has put them and their big government party in a bit of a bind. While Democrats like to be the ones who give away free stuff, they will not like being saddled with the now explicit burden that their most recent generosity is only possible by a radical new increase in taxes on the middle class.
My guess is that once this realization sinks in the criticism of Roberts will begin anew and the Obama spin (aka lies) will be even harder to stomach.