Saturday, June 30, 2012

A Supreme Disappointment

A bad day begins at the Supreme Court. Picture by yours truly.

During the night before the Supreme Court's ruling on the "Patient Protection Affordable Care Act," or--let's be honest--"Obamacare," as it is now fated to be known, I had trouble sleeping. This fitful rest was a symptom of the anxiety I've had for months over the potential outcome of the decision. Yes, there were five justices on the bench appointed by Republican presidents, outnumbering the four appointed by liberals. And yes, the Act represented an expansion of federal power so extreme that I thought even an institution with such an inconsistent record as a defender of liberty (as I shall explain a few posts hence) might take the bait and strike the mandate down, at the very least.

But even with these caveats in mind, I was simply never able to imagine a future in which the Court upheld this law. My visit to the Court on the morning of the ruling did not change that. Even so, when the very first news reports came out at 10 a.m. Thursday morning, announcing that the Court had struck down the mandate, I was briefly delighted; all too briefly, as it turned out. For, as the Elder Son has so skillfully explained below, the Court did strike down the individual mandate at the center of the legislation--as an exercise of Congress' power under the Constitution's Commerce Clause. But Chief Justice John Roberts upheld the law anyway, as a justifiable exercise of legislative taxing power. This despite repeated assertions by the administration that the mandate was not a tax (click here for one from the President himself, back in 2009); despite the Act's lesser likelihood of making it through Congress if it had been recognized as a tax from the start; and despite the new reality that a precedent exists for Congress to tax inaction to induce the purchase of a product.

I, for one, did not expect Roberts to be the fifth vote in the first place (I thought, if anyone, it would be Anthony Kennedy), much less that he would issue his ruling by answering a question he wasn't asked. To me, it seems that Roberts conceived his ultimate decision first, and worked backwards logically to support it. Now, any lawyer--or even participants of high school Mock Trial--will tell you that this is speculation. But until we learn what happened behind the scenes of this ruling--if we ever do--speculation will have to suffice. Still, all proper conjecture must have some root in reality, and there are certain facts that support this possibility. For one, if you read the dissenting opinion filed by Scalia, Thomas, Kennedy, and Alito, they refer to Ginsburg's opinion as "the dissent"--which is sort of strange, since her view won out in the end (in a way--more on that below). Is it possible that these dissenters had Roberts on their side until something forced his hand? I think so.

That leaves the question, however, of what did the forcing. Allow President Obama and Senator Patrick Leahy (D-VT) to answer that question. If you cannot view those links, here is the story they tell: two elected officials, from the executive and legislative branches of government, respectively, attempted to coerce the Court into ruling the way they wished it to on the constitutionality of Obamacare. And they certainly were not alone among liberals. Indeed, if anything, they were merely the first to do so. In the days leading up to the ruling, liberal academics and journalists were preparing to brand the Roberts Court as "radical." In the alternate universe in which the Court struck down Obamacare, this talking point would have been passed around the liberal universe without end. Undoubtedly, the president would have spoken out against the Court, like he did after Citizens United. Undoubtedly, the "paroxysm of rage" from which the New York Times editorial board claimed Roberts' decision saved the country would have emerged--but only among liberals (the rest of the country remained solidly opposed to Obamacare before the ruling; we do not yet know if the ruling has changed this significantly). The appearance of Occupy-style protestors on the steps of the Supreme Court would not have surprised me, nor would have vandalism against the building itself.

But we do not inhabit that universe, and to describe it again calls for speculation. Meanwhile, in this one, the liberal elite chose to create a climate of coercion toward John Roberts; he, mindful, as Chief Justice, of his Court's legacy, chose to acquiesce. It is by far the most brazen attempt at judicial subordination since FDR's "court-packing" scheme, which essentially began the era of liberal-dominated jurisprudence which still mostly dominates (more on that in a subsequent post). How fitting for our FDR-wannabe president to act as such!

Some conservatives have attempted to discern some silver linings in the ruling, but I find these to be rather strained. The main argument of these contrarians is that Roberts simultaneously appeased liberals, constrained the authority-granting of the Commerce Clause, and proclaimed the individual mandate to be an implicitly unpopular tax--all in a feat of Marbury v. Madison-like* judicial jujitsu. Of these corollaries, I find only the third to be in any way consoling. The first implies that Roberts made a political decision rather than a judicial one. As for the second, Roberts was the only member of the upholding majority to rule that the Commerce Clause was an illegitimate justification for the individual mandate; the Court's four liberals had no trouble justifying it as such. Roberts' opinion, being his alone, does not even serve as precedent. (Incidentally, why do we only hear about the "conservative bloc" of the Supreme Court, and why do its members alone tend to cross over for decisions such as these?)

As for the third argument, there are some possible, though still cloudy, silver linings. Having deemed the mandate a tax, Roberts has now forced Obama to defend passing one of the biggest tax increases in history. Moreover, as a tax--inherently a revenue-raising measure--a bare majority of 51 Republican Senators, plus a Republican president and House, could gut the Act's mandate, at the very least, leaving it in tatters. This assumes many things, however, not all of which might be true: that Republicans will gain enough seats for a Senate majority and win the presidency; that Democrats won't continue their sophistry by claiming that the mandate isn't a tax except when they need it to be; and, perhaps most importantly, that Republicans will have the courage to use their moment in the majority to reverse the most serious advancement of the entitlement state since the Great Society, courage which past Republican majority moments have cast into doubt (two words: Medicare, Part-D).

The greatest short-term effect of the Court's ruling is to raise the stakes for the 2012 election. Many conservatives were, I imagine, hoping that the Court would strike down Obamacare so that Mitt Romney--whose record is, indeed, somewhat unreliable--would not have to receive the full measure of their support. With this decision, however, all conservatives must come, if they have not already arrived, to the realization at which we Sons arrived many months ago: Romney's not perfect, but there's really no other choice. To their credit, signs point to acceptance of this; for example, Romney's campaign raised 4.6 million dollars within 24 hours of the Court's decision. This November represents the last practical chance for opponents of Obamacare to strangle the baby in its crib.  Otherwise, the country is stuck with it for good--at least until the fiscal collapse to which it is bound to contribute.
If Obama wins in November, Obamacare becomes Hercules.

In short, Roberts has turned the 2012 election into a genuine conflict of visions, as James Pethoukoukis has argued, in which, quite simply, one side will prevail over the other--no "centrist compromise" about it. It is up to the country now to decide which side that will be.

*In Marbury v. Madison, Chief Justice John Marshall simultaneously issues a ruling that favored the position of President Jefferson while expanding the purview of the Supreme Court so much as essentially to establish the Court's power of judicial review; that is, its ability to assess constitutionality as a check on the other branches.

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