June 29, 2012

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It is time everyone cooled down and Charles Krauthammer is the man to start it.

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one 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.

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce. …

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

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief. But that’s how he did rule.

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 telling the nation: Your job, not mine. I won’t make it easy for you.


Tom Scocca from Slate is next.

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered.

Yes, Roberts voted to uphold the individual mandate, joining the court’s liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause.

This is why the challenge to the ACA, and its progress through the courts, came as a surprise to Democrats and to mainstream constitutional scholars: Three years ago, there was no serious doubt that Congress had the power to impose the individual mandate. …

… The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.


Mark Tapscott, managing editor of the Examiner has already backed down.

OK, it’s hard to admit but my initial reaction to this morning’s Obamacare decision by the Supreme Court – a snide tweet branding  Chief Justice John Roberts as another “gift” from President George W. Bush like the Medicare Prescription Drug benefit program – was embarrassingly hasty. …

… Roberts has forced the entitlement state to drop its pretense that government entitlements are intrinsically beneficial and concede the brutal reality that they are in fact the application of force to take from some to give to others. As a practical matter, taxes cannot represent an unlimited power. That’s a genuinely new deal for welfare state advocates. and one that is not likely to adduce to their future success.

Finally, and perhaps most importantly, Roberts forces what is a profound assault on the nation’s constitutional framework hiding behind the false flag of humanitarianism out of the courts and tosses it into the political arena where the general sense of the community can resolve the outstanding issue.

As long as there are congressional elections every two years and presidential elections every four years, the American system will continue to give advocates of whatever stripe – you know, those “factions” Publius so feared – realistic hopes of eventually prevailing. When political questions are decided by a mere five black-robed judges, it can take generations – or a civil war – to reverse the damage (See Dred Scott, Plessy v Ferguson, NLRB v Jones & Laughlin Steel, Wickard v Filburne, etc.).

On balance, I believe the decision takes a giant step toward restoring the judicial efficacy of constitutionally limited government and drags New Deal liberals and progressives out from behind their pretense of being compassionate and virtuous. That said, it will still take some time for enough cases to work their way through the court system to allow the full fruit of the decision to be harvested.

And one more thought: During our civil war, battles that appeared lost on the first day were often won on the second or third day (Shiloh, Gettysburg). Those who see today as a loss should take heart because tomorrow the struggle will be on new and more promising ground. …


Toby Harnden in the Daily Mail, UK says this looks like a ‘pyrrhic victory’ for the president.

… Romney, with his Massachusetts baggage, is an imperfect messenger on healthcare. But the Roberts tax argument plays right into his hands by linking Obamacare to the economy.

In a time of economic hardship with rising unemployment why did Obama raise taxes to achieve the Left’s dream of universal healthcare? That’s a potent question for Romney to ask in the final four months of this campaign.

The decision deprives the Left in a single stroke of its argument that Obama needs to be re-elected so he can appoint liberal judges to a Supreme Court controlled by Right-wing zealots. It also gives Romney a very clear message of ‘repeal and replace’.

A striking down of Obamacare would have been a disaster for Obama. But in the longer-term, his victory might well prove to be a Pyrrhic one.

Some conservatives are already calling Obama’s healthcare reform ‘Obamatax’ rather than ‘Obamacare’. If Romney adopts that description, he makes the reform sound altogether less benign and he links the healthcare debate to his core message about the economy.

Roberts may have enraged many conservatives by refusing to kill Obamacare. But if he become known ultimately as the father of Obamatax he may well have handed Romney an election gift.


Jennifer Rubin suggests six things to watch.

… 6. The impact on employment and small business may be considerable. The RNC is highlighting this from CNBC’s Jim Cramer: “I think this is just a terrible decision, people, for the possibility of more employment for this year. Look, this is not a great thing for small business, and I think that the market is afraid that small business will lay off people, and I think that the market is taking it over, all right, in that this is just another reason why you should not hire and another reason why you should fire.”

This is precisely the argument that Mitt Romney has been making: Obama’s policies are retarding growth and impairing hiring. If we see continued decline in the jobs numbers, this argument becomes very powerful. In short, Obama chose “historic” health-care legislation over an economic revival, and now Americans are paying the price. Conservatives have a unique opportunity to explain why Obamacare is bad policy and quicksand for Democrats to defend.


Sean Trende of Real Clear Politics has a piece that needs editing but contains germs of interesting thoughts.

3. The chief justice has built up some political capital.

Barack Obama was forced to go on television and praise the court’s ruling. In so doing, he validated — at least implicitly — one of the most pro-state’s rights decisions in recent times.

Roberts has basically done what John Marshall did: Insulate the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long

4. This matters in the long run — a lot.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

The cartoonists understood all of this very quickly.

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