Obamacare: 'Things are now up for Grabs'

[This week, Clarice's Pieces is appearing on Friday.]

"[I]n the 1980s, the political psychologist Philip E. Tetlock began systematically quizzing 284 political experts - most of whom were political science Ph.D.'s - on dozens of basic questions, like whether a country would go to war, leave NATO or change its boundaries or a political leader would remain in office. His book "Expert Political Judgment: How Good Is It? How Can We Know?" won the A.P.S.A.'s prize for the best book published on government, politics or international affairs.

Professor Tetlock's main finding? Chimps randomly throwing darts at the possible outcomes would have done almost as well as the experts."

You could pretty much say this about the Obamacare case. Hundreds of pages of  analysis and predictions and few if any reflected the final, rather surprising outcome: Four ,and potentially five justices  if one reads Roberts carefully, have for the first time since the FDR court recognized there are substantial limitations on the power of Congress to regulate behavior under the cloak of the Constitution's Commerce Clause and, just as significantly, seven justices determined that Congress cannot blackmail the states into accepting new federal programs by threatening to cut off funding  under existing programs should they refuse to accept the expanded programs.

(a) First looks at the opinion suggest the gloom of many conservatives is not warranted: The decision has much to commend it.

As a starter, Justice Roberts' statement:  " It is not our job to protect the people from the consequences of their political choices." is as clear a statement of conservative  thought about the Court's role as one might find in a Supreme Court case of recent vintage.

On the individual mandate, Roberts joined with the left wing of the Court and sustained it but only after finding it was not authorized by the Commerce Clause and was justified only if one considered it a tax on inactivity-in this case the failure to secure insurance.

Larry Solum explains why what might appear to be mere sophistry is far more significant:

Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law.  In the extraordinarily unlikely event that there had been a majority opinion authored by one of the four justices from the left wing of the Court, the decision would have cemented (at least for a time) the most common academic understanding of Congress's power under Article One of the Constitution.  Roughly, that understanding is that Congress has plenary legislative power, limited only by the carve outs created by the Supreme Court's decisions in Lopez and Morrison. [snip]

For many years, some legal scholars had advanced an alternative reading of the key cases uphold New Deal legislation.  On this alternative reading, the New Deal decisions were seen as representing the high water mark of federal power.  Although the New Deal represented a massive expansion of the role of the federal government, it actually left a huge amount of legislative power to the states.  On the alternative gestalt, the power of the federal government is limited to the enumerated powers in Section Eight of Article One, plus the New Deal additions.  These are huge, but not plenary and unlimited.

Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus.  As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:

"In our view, the entire Act before us is invalid in its entirety."

The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court.  And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.

We are only minutes into a long process of digesting the Health Care Decision.  But in my opinion, one thing is clear.  Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.

Jay Cost, a political analyst I highly respect, follows suit: 

[I]f you were more concerned about the qualitative expansion in the power of the government that the  bill represented, it was definitely a win.

First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.

Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.

Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived. The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.

Conservatives have a shot at getting the best of both worlds: having the Supreme Court use Obamacare as a way to limit federal power while also using the democratic process to overturn the law. I didn't think we could have one without the other, but now maybe we can.

If Obama loses in November, that is...

(b) What Next?

The ball is now in the Republicans' court. They've already scheduled a repeal vote on July 11. Once before the Democrat-controlled Senate was able to scotch the effort by threat of filibuster. Had the mandate stood as mandate they could do so again. But now that it's a tax, it can be passed by a simple majority. And if it is, the president will be forced before the election to veto a repeal  of a law  a majority of the voters keep indicating they want repealed.

Every Democrat running in November will be forced to defend what amounts to the biggest tax increase-about $400 billion dollars-in American history, a tax largely levied against the young and the middle class who don't normally carry health insurance.

Professor Ann Althouse sets out the state of play for Obama and his party:

I have said repeatedly that Obama would be worse off if Obamacare were upheld, but what I'm really seeing is how bad it is for him with the mandate declared a tax.

Remember the Democrats got the statute passed by insisting it was not a tax. Now, we learn it is only constitutional because it is a tax. That's got to hurt politically.

ADDED: Romney has at least 3 big arguments:

1. Obama imposed a huge new tax on working people.

2. Obama deceived the American people by saying it was not a tax, when it was.

3. The law made it look like money would go to insurance companies - in the form of new premiums - that would keep premiums low as the companies were required to take on people with pre-existing conditions, but now we find out that the money is really going to go to the federal government. [ADDED: So get ready for your premiums to spiral up and/or for insurance companies to be ruined.]

(c) In the end Republicans have a sharp new limitation on the expansion of federal power, and a very good political platform to run against the President and the Democrats, as  Erick Erickson notes:

It seems very, very clear to me in reviewing John Roberts' decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Did you really ever think Nancy Pelosi and Harry Reid and Barack Obama could outsmart and outplay Justice Roberts? Really?

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