Saturday, June 30, 2012

some of the wisdom out there on the SCOTUS ruling on ObamaCare

A sampling of good stuff from both sides of the political spectrum. I hope you enjoy it!

First, Bert Atkinson in Independent Journal Review: sees this as a “short-lived celebration” for the Left and “payback for Obama’s numerous, ill-advised and childish insults directed toward SCOTUS”. (I’m not sure about the psychology of the last point, but it’s interesting. Anyway, the rest of the essay seems spot on to me.) 

Chief Justice Roberts actually ruled the mandate, relative to the commerce clause, was unconstitutional. That’s how the Democrats got Obama-care going in the first place. This is critical. His ruling means Congress can’t compel American citizens to purchase anything. Ever. The notion is now officially and forever, unconstitutional. As it should be.

Next, he stated that, because Congress doesn’t have the ability to mandate, it must, to fund Obama-care, rely on its power to tax. Therefore, the mechanism that funds Obama-care is a tax. This is also critical…Obama declared endlessly, that it was not a tax, it was a penalty. But when the Democrats argued in front of the Supreme Court, they said ‘hey, a penalty or a tax, either way’. So, Roberts gave them a tax. It is now the official law of the land…Obama-care is funded by tax dollars. Democrats now must defend a tax increase to justify the Obama-care law.

Finally, he struck down as unconstitutional, the Obama-care idea that the federal government can bully states into complying by yanking their existing medicaid funding…Therefore, a state can decline to participate in Obama-care without penalty…Are we going to have 10, 12, 25 states not participating in “national” health-care? Suddenly, it’s not national, is it?

Roberts “upheld the law on the basis of the argument that although the Congress and the president specifically said that the mandate funding the legislation was not [sold as] a tax, it [should] be "construed" as one. Roberts pointedly said that this was not an opinion on the quality or advisability of the law merely on the taxing authority of Congress (even when they don't intend to pass a tax).

That the law was passed on a purely partisan vote, that few who voted for it read it or were fully briefed on the contents of its 2,700 pages, that its first 10 years of operation are now projected to cost nearly $3 trillion, twice their initial estimate, and that it is now evident that many employers will opt to pay the penalty and cancel their existing health plans leaving millions of Americans unable to continue their present coverage as advertised -- none of these are constitutional issues. Congress does not have to read or understand what it passes and advocates are free to distort financial projections and demagogue…This is American government at the dawn of the 21st century. It's all perfectly constitutional.

Now, also in keeping with our constitution, on Nov. 6, 2012, the American people will have their say…

The only thing missing here is the recognition that 51-53% (of those who vote) will get to jam their preferred version of reality down the throats of the losers.

He had three options: Strike down a signature piece of Democratic legislation in its entirety, which would look highly partisan; strike down the individual mandate, which would look even worse since it was a conservative Republican idea; or uphold the law in a way that's designed to do maximum political damage to the Democrats and protect the Court's current corporate status…

Stock prices in the for-profit hospital industry soared, rising 7% in heavy trading immediately after the Court ruling. Stocks for the nation's largest health insurers barely moved…That tells us something important: Roberts' decision to side with the liberals and moderates didn't exactly create a revolution in our health care economy…

By joining with the liberals, Roberts was able to write the ruling himself. He did it in a way which the other four disagreed with, but which was designed to provide talking points for Republicans and the Right. He labeled the mandate's penalty a "tax" (which it is; so is the so-called "Cadillac tax" on higher-cost health plans, which Obama campaigned against and then personally inserted into the bill)…

Justice Roberts's opinion makes him a hero for a day to many liberals. It also moves the Court, at a stately pace, toward an aggressively right-wing view of the federal government's power. Moreover, it keeps the Court at the very heart of issues where it does not belong. For all its obvious appeal, it is self-aggrandizing and far more radical in its reasoning than in its outcome. That reasoning may have serious consequences down the road…

That said, consider the way the Roberts opinion envisions the world. We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces. The democratic process is not enough to protect us from such palpably unpopular laws. We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere. To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government… (This is reminiscent of Joe’s thread that devolved into a discussion of government as exercising force—or not.)

Roberts's argument has force only in a Tea Party view of government and personal liberty… (And this in contrast to Purdy’s view of statism and collectivism. Now what?)

Charles Krauthammer at is effusive in his praise: of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature…

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare…

National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed…

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

Similarly, at HuffPo, Adam Winkler sees this as the emergence of the “Roberts court”, supplanting or at least competing with the “Kennedy court”. 

With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.

Roberts' decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by "modesty and humility" and protection of the precious institutional legitimacy of the Court.

Today, the institutional legitimacy of the Court was buttressed. President Obama wasn't the only winner at the Supreme Court today. So was the Supreme Court itself…

Perhaps as a result of the Roberts' Court's controversial 5-4 rulings, public opinion of the Court is at an historic low…recent polls show the Court's public approval rating has dropped from 80% to 44%. Three in four Americans now believe the justices' votes are based on politics. Nothing could be worse for the Court's institutional legitimacy.

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

The Roberts Court has only just begun.

But at Jewish World Review, National Review’s Rich Lowry isn’t buying any of this and is highly critical of Roberts:

Chief Justice John Roberts famously defined himself as an umpire in his confirmation hearings. But an umpire is willing to make the toughest calls. In his ObamaCare decision, Roberts the umpire blinked. By issuing a decision that forestalled the tsunami of criticism that would have come his way had he struck down the law (as an activist, a partisan and an altogether rotten human being), Roberts effectively rewrote the constitutionally problematic portions of it. He overstepped his bounds. The umpire called a balk, but gave the pitcher a do-over. The ref called a foul, but didn't interrupt the play.

As a result, there's ObamaCare as passed by Congress. Then there's ObamaCare as passed by the Supreme Court…

Roberts gets points for cleverness. He set clear constitutional boundaries without striking down the law. He largely sided with the critics of ObamaCare without enraging its supporters. He came up with the only 5-4 decision that wouldn't subject his court to the calumny of the Obama administration and law-school deans everywhere. All the op-eds that had been drafted trashing the legitimacy of the court have been filed away for now.

As chief justice, Roberts has competing priorities, of course. But it's not his job to redraft laws under the guise of judicial restraint. On ObamaCare, the umpire struck out.

Obama doesn't get to reprise his favorite role as victim of GOP tactics. The onus to live with, clean up or gut Obamacare remains with Congress. The decision did not fall prey to right-wing judicial activism.

Besides, there's something tasty about Roberts saving Obama's signature legislation from oblivion — after then-Sen. Obama voted against confirming Roberts in 2005. So much for Obama the moderate, Obama who really wants to work across the aisle — more accurately known as Obama the fictional icon.

University of California, Berkeley law professor John Yoo doesn't think Roberts believes the content of his own opinion. Yoo believes that Roberts doesn't buy his own argument on the individual mandate but wrote an opinion "meant to pull the court out of a political fight."

Yoo concluded, "That's the real message for conservatives: We shouldn't put all our eggs in one basket and hope the Supreme Court is going to save us." He's right. Some fights are best fought in the ballot box.

Barack Obama won the battle, but will lose the war. The Supreme Court decision makes Obamacare the central issue in the 2012 election, just like it was in the 2010 election. And we know how that turned out…the Supreme Court did not let Obama off the hook by striking down the law. Now he will have to defend it during the election…

Remember what this law does. It requires everyone to spend upwards of 7 percent of their income on health insurance or pay a fine of several thousand dollars. Neither is an attractive alternative for the young and the poor who are the president's political base. And, with the expansion of Medicaid rejected by the Court, the government will not be there to help them…


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