Obamacare's constitutionality resolved, political questions remain

Obamacare - It's a tax, but it doesn't have to stand. Photo: Associated Press

SALT LAKE, June 28, 2012 – Chief Justice John Roberts has thrown the president a life preserver today.

Whether President Obama will use it to save his sinking re-election chances or cast it aside as a tainted gift from a partisan enemy is open to speculation.

In the Supreme Court’s 5-4 decision on the constitutionality of the Affordable Care Act (Obamacare), Roberts’s written majority allowed the controversial law to stand.

It is entirely obvious in hindsight that conservatives, and the law’s legal critics, were overconfident after oral arguments were presented in March. Then, the entire defense of Obamacare seemed to be teetering on the nervous mutterings of a solicitor general in over his head.

Of course, it was never in doubt how the liberal wing—Ginsberg, Breyer, Sotomayor, and Kagan—would vote. They needed no compelling argument to affirm any congressional power that advances a progressive agenda.

But it was the archconservative Roberts, often vilified (by President Obama, no less)for  turning the Court into a partisan mockery), who crafted a way for the four liberals to get their way.

The question before the nine justices in “National Federation of Independent  Business v. Sebelius” was a legal and constitutional one.

Roberts found enough in the case law to permit Obamacare’s pillar, the individual mandate, to stand. In essence, the mandate resulted in a tax not unlike other federal taxes, so it was consistent with Congress’s constitutional powers.

“Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS… [if] someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”

His reasoning wasn’t advanced by the law’s proponents, nor were they shared by the concurrent justices.

That the legal questions are answered, conservatives and others concerned with the massive expansion of congressional power will move full steam to solve the political question.

Here, conservatives need to tread very lightly. For three and a half years they have been saying, not without warrant and sound reasoning, that the law is fundamentally unconstitutional. It is, by the only valid measure available right now, not. The law’s foes need to respect the Court.

But just because something is deemed constitutional  does not make it prudent, and Obamacare is about the most imprudent governmental exercise in so many ways.

For one, its main goal is to improve the health care for all Americans. What’s really bad for American’s health is a bad economy. Seriuosly. People tend to be less healthy when they can’t afford things, and this law has been a drain on the economy since before its passage.

Obamacare was also ill-conceived and passed in bad faith. It created political divides and ruptures that have been detrimental to solving other, more pressing problems.

Finally, it reveals a bold lie that the president and his allies serially advanced. “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president famously said in 2009.

That position is a manifestation of the way President Obama contorted himself to make the law politically palatable. And it is false. Conservatives can exploit the president’s lie. They undoubtedly will. The president can no longer play a double game with the politics, and with public attention focused more now than ever, he cannot escape the fact that he levied one of the largest taxes in the republic’s history.

While the reasoning favorable to the law have been obliterated, the main arguments against it remain intact.

For instance, the majority decision allays, for now, conservatives’ worry about over the seeming infinite elasticity of the Commerce Clause: “The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it,” wrote Roberts.

The dissenters agreed. “To go beyond [the established Commerce powers], and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can befederally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

In short, all of the conservative arguments against Obamacare stand, and are now bolstered by a strong written dissent, while the law eked by a constitutional standard on a mere technical reading of the taxing power by one justice.

The political implications of the decision are as unpredictable as the court itself. But they will become clear by November.

If President Obama can show some grace and willingness to listen to conservatives’ unease about his signature initiative, he might be able to make a win out of this.

But if he is anything like the Obama of the first three and a half years, he’ll ignore the lifeline given him by the Court and politicize the situation to his detriment. 



Learn more about the author at Rich-Stowell.com 

Rich is a teacher and a soldier. In addition to writing the “Rich Like Me” political column at the Washington Times Communities, he is the author of Nine Weeks: A Teacher’s Education in Army Basic TrainingTunnel Club; and Not Another Boring Textbook: A High School Students’ Guide to their Inner Conservative, which you can follow on Facebook.


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Rich Stowell

Rich Stowell has written about politics and travel for the Washington Times Communities since 2011. He is a soldier in the Utah National Guard and a fellow at the Center for Communication and Community at the University of Utah. Rich is the author of "Nine Weeks: A Teacher's Education in Army Basic Training"and continues to blog about military issues at “My Public Affairs.”

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