Tuesday, July 17, 2012


Et tu, John? This was the anguished outcry of many conservatives to Supreme Court Chief Justice John Roberts’ majority ruling on the constitutionality of the Patient Protection and Affordable Care Act, affectionately known as ObamaCare. In a startling reversal of his historically conservative and originalist judicial philosophy Chief Justice Roberts wrote the majority opinion of the Supreme Court to uphold ObamaCare.

The plurality of American conservatives anticipated Robert’s vote on ObamaCare to align with the other three conservatives on the Court, Justices Alito, Scalia and Thomas, who each voted to overturn the controversial health care legislation. Conventional thought had the swing vote to rest in the hands of Justice Anthony Kennedy. But Kennedy voted with Alito, Scalia and Thomas, and Roberts was the surprise judicial trump card.

Conservatives, stunned and outraged over Roberts’ vote, are calling for his head and branding him as a traitor, coward, a disappointment and a flip-flopper. Are these assaults on Justice Roberts merited? But then again since ObamaCare was upheld by the high court why isn’t the collective liberal left doing triumphant cartwheels? What is the political landscape to make of this abstruse political reaction to the Supreme Court’s ruling? Perhaps it has something to do with how Chief Justice Roberts reconstituted the constitutionality of ObamaCare.

The individual mandate, which requires everyone to either have or purchase health insurance, animates ObamaCare. ObamaCare’s individual mandate requires everyone to pay into the health care system by either purchasing insurance or, if they elect to not purchase health insurance, to pay what the Obama regime characterized as a “penalty”, even though this self styled “penalty” was to be collected and administered by the IRS. In their campaign promoting (some would characterize force-feeding) ObamaCare to the public the Obama regime effusively remonstrated that the penalty is not a tax. They knew full well that since ObamaCare had lackluster public support, if the penalty was also perceived as a tax that would be a death knell for the controversial legislation.

The individual mandate provision is the core of ObamaCare and without this provision the legislation is not financially sustainable. If the individual mandate was struck down by the Court the entire infrastructure of ObamaCare would break down, therefore the constitutionality of the individual mandate was the argumentative centerpiece of the government and the plaintiff’s case.

The plaintiff, the National Federation of Independent Businesses, argued to the Court that the individual mandate is unconstitutional since the Constitution does not authorize the government to compel someone to purchase a product or service. The Obama regime argued that the individual mandate was constitutional under both the Commerce clause and the Necessary and Proper clause, aka the Elastic clause, of the Constitution. Also, oddly enough and in a desperate, last ditch surprising strategy to defend this indefensible legislation, the government argued to the Court that the individual mandate is constitutional since it is effectively a tax, the very description that the Obama regime adamantly denied and feared. But, of course, in order to brand ObamaCare with any semblance of constitutional respect, the Obama regime’s argument was focused on convincing the Court to agree with them that the Commerce and the Elastic clauses are the constitutional provisions that support its constitutionality.

Chief Justice Roberts effectively squelched both side’s arguments by voting that both were right and both were wrong. In his majority opinion he ruled that ObamaCare was not constitutional under the Commerce and the Elastic clauses, providing comfort for all Americans who feared the government could have the unprecedented constitutional authority to force them to buy any product or service. But he did rule that ObamaCare was constitutional, but only as a TAX. And according to FactCheck it is a whopping $6 billion increase in annual taxes. Chief Justice Roberts wrote in the majority opinion,
“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
The Court’s decision brought jeers from the conservative right and ambivalence from the liberal left, leaving victory to lie in the eye of the beholder.

Certainly conservatives, constitutional originalists and libertarians are sullen knowing that this monstrosity of socialist-based entitlements, costs and governmental intrusion called ObamaCare is now the law of the land, regardless of how it was constituted. The solitary solace they can find in the Court’s decision is that a precedent has been set that the government cannot coerce a product or service to be purchased under the Commerce or the Elastic clauses; but they can tax their way into our lives unfettered.

The progressive/socialist left democrats won the day by having ObamaCare remain intact, but a hollow victory for sure. They are now saddled with the inescapable and humiliating albatross of a new moniker for their signature legislation, the “ObamaCareTax”. How ironic for the left to have received the decision they craved, but on the terms they despised, damming them to continue to remain the party of “tax and spend”.

There has been conjecture that the Chief Justice’s decision to rule in favor of ObamaCare was a covert public relations tactic on his part to represent the Court as an ideologically non-partisan institution, since it was widely anticipated that he would vote with the other three conservative justices to strike down ObamaCare’s individual mandate as unconstitutional. To wit the “traitor” handle conservative activists have marked him. But the conservative anger and outrage over Chief Justice Robert’s vote may be shortsighted to say the least. Yes, the Chief Justice handed the progressive/socialist faction of America a victory, but the trophy is gold plated and laden with arsenic.

It will be fascinating to see how the democrats on the left will labor to defend it’s new $6 billion ObamaCareTax in the upcoming presidential election? Of course the democrats will only have to defend what the republicans assail. If the republicans can see past their blind hatred for Chief Justice Roberts’ vote they will come to realize that his Supreme Court ruling primed the pump for a republican assault on the democrats new $6 billion tax, levied predominantly on the lower and middle classes, under the pretenses of universal access to health care.

However, the Chief Justice’s ObamaCare ruling was more of a wink wink versus a slap in the face to conservatives. His ruling laid the groundwork in a presidential election year for the republicans to lodge a campaign against President Obama and the democrats as imperious, out of touch, insensitive socialist elitists imposing the most onerous tax in the history of America on the least capable of paying during an economic crisis created by their foolish policies.

The Chief Justice’s vote on ObamaCare rendered a victory for the democrats, but their celebratory silence is deafening. So what will it take to get them talking a defensive blue streak? It will take the republicans to finally recognize that the Court’s decision presented a prime opportunity to transform the democrat victory in the high Court into a toxic campaign liability in the court of public opinion.

1 comment:

Richard C. Lambert said...

The individual mandate provision is the core of ObamaCare and without this provision the legislation is not financially sustainable. If the individual mandate was struck down by the Court the entire infrastructure of ObamaCare would break down, therefore the constitutionality of the individual mandate was the argumentative centerpiece of the government and the plaintiff’s case. sign up for obamacare in miami