Not only was Thursday’s Supreme Court decision affirming the validity of Obamacare a huge political defeat for the Conservative movement, it also exposed the fact that the supposedly conservative Chief Justice of the Court, is actually an unprincipled political operative who can be cowed into supporting a massive expansion of the welfare state in the face of sustained and organized liberal media pressure.
This is near catastrophic news for the conservative movement. News that must be met with a call to apply equal pressure in the future.
First, lets dispense with any fantasies that Roberts section on the Commerce Clause in any way limits federal power. The entire section is irrelevant. A truly minimalist court only decides what is necessary. Since Roberts found that Obamacare was justified by the taxing power, that should have been the end of the discussion. The entire section on the commerce clause is, at best, dicta.
But in fact, it is far far worse. It only invites future Congressional overreaches by establishing the precedent that Roberts will come in and clean up the mess by re-writing the law afterwards. The four liberal justices picked up on this fact:
To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.
(emphasis mine) The Roberts decision effectively removes this check on Congressional power. If you doubt this conclusion just examine Roberts’ own opinion, which offers an example of how a court could justify a mandate to buy energy efficient windows as a tax (pg. 39).
There is a growing body of evidence that Roberts initially voted to strike down the mandate and the entire law but later changed his mind in the face of a liberal media campaign that convinced him such a decision would undermine the prestige of the Court (for example, the conservative dissent has a whole section on severability which would only be necessary if it was at one point the majority opinion).
This might be the only saving grace of his decision. If he can be bullied into textbook liberal judicial activism, perhaps he can be bullied back into being a conservative too.
Around the Bigs
Bloomberg, Abound Solar to Suspend Operations, Will Seek Bankruptcy: Abound Solar Inc., a U.S. solar manufacturer that was awarded a $400 million U.S. loan guarantee pursuant to Obama’s stimulus, will suspend operations and file for bankruptcy because its panels were too expensive to compete.
The Washington Post, House votes to hold Attorney General Eric Holder in contempt: The House of Representatives voted Thursday to make Eric H. Holder Jr. the first sitting attorney general held in contempt of Congress in U.S. history after he withheld documents that Republican lawmakers demanded as part of an investigation into a flawed gunrunning operation.
USA Today, Insurers like that health law ruling sets their path: Insurance companies hailed the Supreme Court’s ruling upholding the Affordable Care Act, saying it gives them certainty about the rules they’ll face as they push to cut administrative costs and reward doctors who contain health care costs by emphasizing preventive care.
After the Courts’s ruling, Rush Limbaugh called Obamacare, “the Largest Tax Increase in the History of the World.”
The Volokh Conspiracy‘s David Bernstein urges Republicans to hold vote on House floor forcing Democrats to acknowledge that the individual mandate is a tax.
RedState‘s Daniel Horowitz lists 10 Reasons to Oppose Highway/Student Loan/Flood Insurance Omnibus Bill.
The New Yorker‘s Ryan Lizza predicts Romney will not repeal Obamacare even if he is elected.
The American Prospect‘s Paul Waldman predicts Republicans will stop talking about health care all together.
The New Republic‘s Jonathan Cohn assures liberals that Roberts did not gut the Commerce Clause.