Friday, June 29, 2012

Chief Justice John Roberts’ stroke of genius?

image Like most conservatives, I was initially dismayed by the news that the John Roberts Supreme Court upheld the Patient Protection and Affordable Care Act in a 5-4 vote. However, after a careful reading of the opinion, I come away impressed and amazed at what Roberts was able to pull off.
It’s nothing short of remarkable.

The first thing Roberts was able to do was craft a majority on the fact that Congress vastly overstepped its bounds in citing the commerce and “necessary and proper” clauses of the Constitution as bases for the individual mandate in the legislation.

The second thing Roberts achieved was forming a super-majority of 7-2 that Congress also overstepped its authority under the spending clause when it sought to punish states for not participating in the expanded Medicaid provisions. The Government wanted to punish non-conforming states by withholding all Medicaid funding, rather than just that portion of their funding that would go to the expanded benefits under the law.

The third thing Roberts did was carefully craft an opinion that exposed the funding for entitlement programs for what they are—giveaways based on confiscatory taxation, a politically toxic designation.

Last of all—and that which disappoints conservatives but delights historians—is that Roberts found ground to uphold the mandate by conceding that Congress had much broader powers under the enumerated power to lay and collect taxes.

While Roberts found a way to save the image of his court, he also found a way to gut Obamacare without actually throwing it out.

Put succinctly, there is absolutely no way the legislation can achieve its goals of lowering costs and increasing the number of insured persons without forcing states to accept the expanded Medicaid provisions. You crunch the numbers however you want to. You give the Congressional Budget Office whatever contrived scenarios you can imagine. But there is no way that the number of people covered under the law will fall if states don’t play along, and at least 26 of them have already signaled that they won’t when they filed the suit that was decided this week.

Furthermore, there’s no way that the federal government can contain the budget deficit imposed by the legislation if it cannot shift at least some of the burden onto the states, which the 7-2 super-majority said that it couldn’t.

There’s more brilliance in what Roberts has done. Not only has he crafted a way to narrow Congress’ power under the commerce clause, he has put the battle over this and other entitlement programs on the turf they belong on—the political one. And, defining the mandate as a tax also puts this squarely on the terrain occupied by the right.

When a bear and and alligator do battle, the outcome is largely determined by whether that battle is fought in the swamp on in the foothills.

Obamacare—like Social Security and Medicare—is nothing more than an entitlement program. It is funded like all other entitlement programs in that the costs of the program are confiscated from those with the means to pay and its benefits are distributed to those without such means. The mandate is no less of a tax than the FICA and Medicare deductions you see coming out of your paycheck each pay period. The only difference between the mandate and other entitlement taxes is that you can “voluntarily” contribute your share by purchasing health insurance through your employer or from a private provider. It’s as if Social Security or Medicare were partially privatized.

The left simply cannot win a battle to protect an entitlement on this turf. If the American people understand that they will be required to pay a tax so that others can have free healthcare, they will reject it out of hand and proponents of such measures will be thrown out of office.

Roberts hinted that he knew quite well what he was doing when he so eloquently wrote:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
With the mandate now carefully defined as a confiscatory tax, and with the ability of PPACA to achieve its goals now crippled without the ability to compel the states to accept part of the burden, the only way to keep the legislation from absolutely exploding the federal budget deficit is to jack up the mandate to politically unacceptable levels. This is the battle that the left cannot win, because this terrain is occupied by people who are Taxed Enough Already.

By declaring the mandate a tax, the Roberts Court set a potentially dangerous precedent that allows Congress to tax any activity (or, inactivity in this case) it deems unhelpful. It’s really not much of a precedent—there are taxes, fines and fees on all sorts of activities that Congress has determined to be unhelpful in promoting the general welfare. But the Court simultaneously forced elected leaders to stop the prevarications about how entitlement programs are funded. They’re not contributions, or penalties, or co-payments or any other weasel words. They’re taxes.

It’s as if Roberts has handed the statists a lethal weapon, cursed with the power to destroy whoever attempts to wield it.

You’re running for reelection and you endorse massive tax increases to fund yet another entitlement program? Good luck with that, Madam Incumbent.

UPDATE: Fixed the reference to Medicaid Expansion. Ugh. It was late.

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