On Thursday, June 28, 2012 at approximately 9:08 AM (CST) elation ruled on the Right. Initial reaction (news and online) to the Supreme Court (SCOTUS) decision on the Obama Administration’s Affordable Care Act (ACA) – better known as “Obamacare” indicated that the Individual Mandate, the critical, central part of the legislation, without which Obamacare does not function had been struck down as unconstitutional. In Twitterverse and the Blogosphere, Conservative pundits, talking heads and political heavyweights crowed in victory, savoring the defeat of President Obama’s crowning legislative achievement. For the first two years of his administration, he and his allies (cronies) in Congress had labored, scheming, bribing, cajoling, threatening and lying their way to get the legislation passed. Immediately upon passing into law, the ACA was challenged in court by Attorneys General from 26 states as unconstitutional, and now it seemed, after nearly two years of effort, after the stunning election of Scott Brown in Massachusetts, after the uprising of the Tea Party and its electoral success in the 2010 midterms, and after a pathetic argument by Solicitor General Don Verrilli defending the ACA to the Court, that finally reason, the rule of law and Conservatism had triumphed.
Then the bottom fell out. Chief Justice Roberts, siding with the four Liberal justices upheld the vast majority of the law. While ruling that the Individual Mandate was unconstitutional on its own, the court’s majority opinion ruled that the mandate’s function as a tax would be upheld, as Constitutionally, Congress is empowered to levy and collect taxes; as such, the mandate was interpreted to be a new tax regulation. It seemed perhaps that the only saving grace was the Court’s limiting Federal overreach by striking down part of the law that would have stripped States of Medicaid funding for not expanding coverage to additional people.
Confusion, anger, despair and finally dejected silence from the Right came as the realization that Obamacare had prevailed finally sank in. In a short amount of time however, certain realizations came just as quickly, as people began looking more deeply into the seeming victory for Obama, revealing some tantalizing clues into the changing shape of the 2012 election, and renewing hope that the country had in fact been placed on the right track. The results are very heartening.
The ACA Individual Mandate has now been ruled a “Tax”. In 2008, candidate Obama promised the American people time and time again:
“I can make a firm pledge. Under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes.”
A promise which he has now broken. A broken promise that results not only in new taxes for American working families, but one of the largest tax increases in history. A tax which as structured, is one of the most regressive ever implemented, affecting middle class families most of all. While Mitt Romney has been campaigning on Obama’s failed economic policies, he has until now addressed Obamacare solely from the perspective of “Repeal and Replace” through legislative action. Indeed, Romney hadn’t been spending much time on Obamacare, choosing instead to focus on the administration’s excessive spending, excessive regulations and widespread unemployment. Now, thanks to Roberts’ ruling that the Obama administration and Democrats in Congress lied about Obamacare being a tax, Romney can add a massive tax increase of over $500 Billion to his indictment of the failed Obama Regime.
The Federal Government’s overreach into both individual liberties and State Sovereignty under the perceived authority of the Commerce Clause has been effectively curtailed. The Obama Administration insisted that it had the power and authority to enforce the purchasing of health insurance coverage by individuals as well as the power to demand that states increase the numbers of residents covered under Medicaid under the threat of loss of funding. Roberts and the court found both of these premises to be fatally flawed. In a rebuke of the Obama Regime’s encroachment, Roberts wrote:
“Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him. […] Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
- The net effect is that “Repeal and Replace” is now fundamentally much easier. Previously it was thought that each piece of legislation would have to be addressed individually, and repealed piecemeal. Waiver after waiver would have to be issued to the states; penalties would have to be overridden. Now, since the mandate has been correctly redefined as a tax, repeal of the entire law becomes much simpler – imagine: “The ACA Tax Increase of 2010 is hereby rescinded.” Moreover, any attempts in the future to pass legislation as a “Mandate”, or hide enforcement behind a “penalty” is out of the question; Roberts has effectively closed the door. Future Congresses would have to call a Tax Increase exactly what it is. Imagine how many hidden tax hikes will now die in the bright glare of sunlight. Most importantly, a “limiting principle” on Federal regulatory power has been established, where previously none existed. Until now, only imagination limited Government’s power to regulate (see the EPA). Now, SCOTUS has ruled that there are in fact limits to that power, exemplified especially by restricting Congress’ power to regulate actions that are not taking place, regardless of the possible deleterious effects on interstate commerce. Going forward, Congress will be unable to use the Commerce Clause or the Necessary and Proper Clause to pass sweeping social welfare laws. This will serve to constrain spending and growth – both hugely positive.
In the final analysis, the Obama Administration can celebrate today. Today, Obama’s crowning legislative achievement has passed the Court’s review and stands as the law of the land. But tomorrow, the real battle for Repeal and Replace begins in earnest. The arm-twisting, the bribing, the lies, the “we have to pass the bill so you can find out what is in it” of 2009 have all led to the Supreme Court’s ruling that the Obama, Pelosi and Reid $500 Billion Tax Increase of 2010 is in fact, Constitutional. In terms of ammunition for the campaign, for all intents and purposes Chief Justice Roberts just handed the election to Mitt Romney on a silver platter.