The politics of the ObamaCare decision (repeatedly updated with dissents)

It looks to me that there are some sweet lemons for conservatives in the ObamaCare decision. Before we burn the chief justice in effigy, let's read the decision and think about the implications.

First of all, upholding ObamaCare is going to energize opposition to Obama, and the determination to elect a Congress that can repeal and replace it.  Just a day ago, the MSM was telling us it would be a plus for Obama if the act were held unconstitutional because it would take the issue off the table and weaken his opposition.  

On the other hand, as Rick Moran points out, "it gives Obama a big boost;  everyone likes a winner.

I have no doubt that the same media will now proclaim it is a big victory, a change in momentum, a blow to the right. I also expect Sudden New Respect for Chief Justice Roberts. I am  not going to hold that against him.

For one thing, the Court went nowhere near claiming the Commerce Clause means the feds can force us to do anything. The CJ and the majority (remember, by joining the majority he got to write the opinion) relied on the taxation power, by defining the mandate penalty as a tax. In other words, they seem to have in effect said, Yeah, the Democrats lied when they claimed they weren't raising taxes. Big deal! What do you expect?

Lyle at SCOTUS Blog agrees with me:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.

So in other words, the CJ protected us from the expanding the reach of the Commerce Clause, and let us know that we were lied to by the Democrats. And has handed us a big election issue.

Sometimes we win by losing. Call it the Zen of John Roberts.

Update with other opinions:

Mike Razar (corrected attributuion of this) is outraged by CJ Roberts:

You win some; you lose some. It is doubly painful to lose because of a betrayal by someone you admired and trusted. Caesar's dying words were "Et tu Brute".  Judas Roberts has broken faith with everyone who cares about Constitutional freedom. Given the opportunity to at least slow two centuries of the assumption of dictatorial power by the federal government, Roberts has chosen to side with the Jacobins. His name henceforth is inexorably linked with Benedict Arnold, the one-time hero of Saratoga who mysteriously changed sides when his loyalty was most needed by General Washington. Nathan Hale must be sobbing in his grave today.

Just as the betrayal by Arnold ultimately did no lasting harm, history will record that this act of cowardice sparked a renewed commitment of our modern Tea Party patriots to the founding principles of liberty. Perhaps our righteous indignation will go beyond defeating the liberty challenged politicians in Washington. They should amend the Constitution, to clearly limit the powers of the federal government to tax and regulate the everyday lives of individual citizens.

For now, every Tea Party patriot should sign a petition calling for the resignation of Mr. Roberts.

Sara Goss disagrees:

The Democrats will be hailing the SCOTUS decision to uphold Obamacare as a referendum on Obama's 1st term in office. What they won't be mentioning is that Obamacare was upheld because Congress has the power to TAX. As has been said all along, if it looks like a tax and acts like a tax, then it's a tax. And, it's the largest tax ever imposed in a single shot on the American public.

Republicans should be dissecting this ruling and shouting from the roof tops that Obamacare was sold to Congress as relating to health care. When it was defended in court the main defense was that it was a tax. And, of course, Congress has the power to levy taxes. Going forward, we need to change all references from Obamacare to Obamatax. Because, as has been pointed out by SCOTUS, it's not about health care, it's about taxes.  

C. Edmund Wright thinks Lying is Constitutional; Common Sense is Not

While the pundits are still in shock and babbling about what just happened at the Supreme Court, we do know this much:

The Supreme Court has just ruled that our government can blatantly lie to us about their ability to tax -- as long as they end up calling it a tax in the end.  They can do that with the Court's blessing in fact.  Moreover, the government can now tax what we do or do not do as well as income.   As Andrew Napolitano said on Fox News, his libertarian fervor barely under control,  this is no doubt "the most bizarre tax in history" and allows our government to "tax us not on income, but on behavior."

As Mark Levin reiterated last night on his radio show, Obama Care "fundamentally changes the relationship between a citizen and his government."  Indeed.  We cease to be citizens.  We become line item expenses.

In a technical sense, this was an initial defeat for Obama Care and the individual mandate because the government's ability to compel commerce was struck down.  That's when John Roberts - ignoring the real lesson of Solomon's' threat to cut the baby in half - rushed in to save the mandate by saying that the government could accomplish the same thing by simply calling this a tax.

In other words, according to Roberts, not only are we line items, we are nothing more than schlubs and Roberts encourages our government to lie to us to make sure we don't get out of control.

In other words, Kathleen Sebelius will need a little more help from the IRS than they had originally thought.  Meanwhile, we all just suffered at least a short-term defeat to the very concept of limited government and liberty since Sebelius and the IRS as well as her army of bureaucrats in the Jurassic HHS Department just gained more of a foot hold in our lives.

This will no doubt set up a real showdown between the House and the White House over Obama Care between now and the election.  At this point, how this plays out in a political sense is unknown but there is one thing for sure:  the best chance of today's insane ruling working out well in the end is for the GOP members of the House and for Team Romney to come out hard and aggressive. 

This ruling is awful.  This bill is awful.  It will end America as we know it and therefore it must be defeated and soundly.  And it will likely be fought on the very nature of what a mandate is.

Karin McQuillan looks to the emotional impact:

Two conflicting emotions.  I feel a hollow pit in my stomach, a body blow.  We cannot rely on the Supreme Court to protect us from unlimited, tyrannical nanny state government reaching into every aspect of our lives.  I was hoping, and yes, expecting, the Court to roll back the expansion federal power by a historic reassertion of the Commerce Clause, to once again reserve power to the states, as our founders intended.  I hoped for big language about freedom of citizens from government intrustion.

Our trust and respect for Justice Roberts was misplaced.  He is not going to be a hero of Constitutional government.

Obamacare was not passed as a tax and wasn't passable as a tax.  For the Court to uphold it as a tax is to undercut our democratic process.  It is rewriting the law to make it viable.

Next emotion.  Steely determination.  A landslide victory has just become possible.  The majority of the American people - who loathe socialized medicine - are going to rise up and vote.  They will vote the Obama-Reid-Pelosi European socialist Democrat Party out of office.  This election will be hard fought but it will not be close.

Obama's disastrous attack on our economy through profligate spending and a ban on using our energy resources was not going over well with ordinary voters.  Now he has the millstone of Obamacare around his neck.  Headlines may say he was vindicated, but they will not motivated discouraged, unemployed young whites, single women, Hispanics or blacks to rush out and vote for their guy, all happy that Obamacare will be around. 

It will motivate the rest of us. 

Richard Baehr sees gloom:

I am not as optimistic. I think this could dispirit our side and boost enthusiasm for the dems. Intrade betters feel the same way. Obama odds of winning up a few points already. Last two weeks have been bad news in general for purr side. We are being routed among Hispanics due to new immigration policy. Obama has over 40 point lead nationwide. We will not win Nevada or colorado with these numbers and maybe not florida either. No chance of romney winning without florida. I think today is a disaster. Roberts is gutless. I thought Kennedy would be the squishy one.

Steve McCann sees cowardice, but also sees the "sleeping giant" awakening:

Cowardice. That is the only way to describe the Supreme Court decision to recast the ObamaCare mandate as a "tax." Something the Congress and Obama went out of their way to avoid when debating and passing the bill. Something they explicitly said was not a "tax" on repeated occasions.

The Court appeared determined to find a way to avoid declaring the mandate unconstitutional and thus having to confront the issue of severability which would have forced them to declare the entire Bill unconstitutional. Reading something into the law that was not there is the epitome of judicial activism and a historic black mark on the independence of the Judiciary. Acting as impartial jurors was not the basis of this process, rather it was to avoid, in their minds, getting into a political fray.

All they have done is exacerbate the political process and force the American people to finally confront the fact that they, on November 6th will have the final decision. Conservatives, libertarian, conservative Democrats and Republicans now have had the gauntlet thrown down and Obama and the left, while in celebratory mood now, will face a more united and determined foe.

As Admiral Yamamoto said upon hearing of the successful attack on Pearl Harbor: "I fear all we have done is wake up a sleeping giant and filled him with a terrible resolve."

The Ulsterman Report, which purports to be the voice of a connected DC insider telling the truth anonymously, and which posts fascinating unsourced accounts of what's really going on inside the White House, posts the thoughts of a "long time DC political operative" seeing this as a plus for the GOP, just as I did at the top of this post:

It's 2010 all over again now. Swing states will shift over to Romney in most cases. Trust me on this. We've done the polling. The data is conclusive on this. It's a huge tax. We got Obama lying. Again.

The Tea Party movement, which was as real and powerful a political movement as I've ever seen in my lifetime, is back in play. That scares the hell out of the Obama White House. You just got a bunch of Dems sweating hard over their re-election. The Republican Party will now be a lot more focused and clearly conservative and that's exactly what they need to be this time around.

By calling ObamaCare a tax, the Court has redefined the political dynamics:

It's the Obama Tax now. And states were given an out. The entire law is a big ass convoluted mess and the ruling has reinforced that fact. Obama will have to defend something he doesn't understand, and Romney can now sit back and just repeat over and over again "repeal-repeal-repeal".

If Obama gains any momentum from this, I hope he celebrates and gives into his worst instincts, taunting us. There is plenty of time momentum to change.  The changed terrain will work its effects, and all those Democratic Senators up for re-election are going to  be asked how they will vote on the repeal of ObamaCare and on a filibister attempt in a GOP Senate. So will the incumbent Democrats in the House. Voters will draw their own conclusions on the wisdom of returning Obama to office.

Tom Rowan sees Chief Justice Roberts as a hero:

God Bless John Roberts!

That crafty devil knows America is teed off and is Taxed Enough Already...

Time to party fellow travelers! John Roberts just handed Obama everything he asked for. Fine, we will legislate from the bench fer ya Obamo...Taxmaggedon came in June today.

You wanna see a real million man march...just wait a fer it.

Our beloved Chief Legislator John Roberts has shown us the way and just flushed ObamaCare down the drain.

Gotta love that ole crafty devil Roberts, eh?

Erick Ericson sees some additional sweet lemons:

Erick Erickson:

[Roberts is] very, very much was concerned about keeping the Supreme Court above the partisan fray and damaging on the Court as it persuaded Roberts. (snip)

... while Roberts has expandthe reputation of the Court long term. It seems to me the left was smart to make a full frontal assault ed the taxation power, which I don't really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach. In so doing, he has affirmed the Democrats are massive taxers. In fact, I would argue that this may prevent future mandates in that no one is going to go around campaigning on new massive tax increases.

Erickson makes a very interesting point:

With John Roberts' opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

 Tyler LaChapell is despondent:


Upon waking up this morning I had thoughts of waking to plenty of sunlight that goes along with a beautiful summer in the Upper Peninsula of Michigan.  Much to my dismay, I woke up to something else: darkness. 

What once stood as a beacon of light, the United States is shining faint as can be.  It is important to note that this light has not disappeared instantly, but has been slowly dimming over the last 100 odd years, and with each passing day has gotten dimmer and dimmer, until we have almost reached the point of total darkness.

It is duly important to make a note of what people meant when they described this nation as the "beacon of light."  Whether it was the the Puritans of England who left because of religious persecution, or the people of Ireland who left because of famine, they shared one common idea. This was the idea of living a better life for themselves, and the hope that this new place would give them that opportunity.  

In short, they came here because they wanted to be a part of what they believed in, and not what someone else believed in.  Amazingly, their conflicting beliefs, but also their belief in a common shared idea, led to more prosperity than had ever been seen before.  They proved the counterintuitive idea that people who have different beliefs, can live harmoniously and peacefully among each other and cooperate based on their own independent interests.  It truly was an amazing thing.  And, I say "was" because we no longer enjoy those same opportunities our ancestors shared. 

Yesterday, we were told that our kids can't enjoy their chocolate milk during school lunch because it's unhealthy, today we are told that we have to purchase a product we don't want, and tomorrow we will be told that the number of breaths we take will be rationed, because we need to save some air for everyone else.  

In these dark times, I wonder when the beacon of light will be restored.  Or if it ever will be?  I wonder what happened to the idea of liberty that this country was so intelligently founded upon, and all I can do is hope.

Mimi Winship writes:


It's a big, fat TAX today!

That's not what they told us yesterday.

The ground has shifted. The Tea Party grins.

Obama loses. Romney wins!


Virginia AG Ken Cuccinelli, after at first calling the decision a "dark day," thoguht it over some more and now sees some "silver linings." only takes 51 - not 60 - votes in the Senate to pass (or repeal) a tax bill.

Now that the court has declared this a tax, its ruling effectively prevents Congress from using similar schemes to raise taxes while trying to hide them from the American people by calling them by another name.  From our founding, the American people have been hostile to excessive taxation.  Thus, future Congresses will have to engage in such schemes at their electoral peril.

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