Chief Justice John Roberts’ stroke of genius?

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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Obamacare Quotables

As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.

That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the commerce clause, what can it not do?

“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”

…

Though he shocked many by joining the left plank on the high court, Justice Roberts. pretty much did what he was supposed to do. He finally put a boundary on how much freedom the federal government can gobble up from states and individuals under the “commerce clause” — that most specious scheme for so much federal thievery.

Then he told President Obama and his kleptocrats in Congress that they can have their health care law, but they cannot keep lying about it. A tax is a tax and they are liars if they call it anything else. And they just stuck the crippled American taxpayer with one of the biggest, broadest, most regressive tax-hikes in history — and during a deep, double-dip recession!

Finally, Justice Roberts turned to the bumbling, tongue-twisted and goofball opposition party — sometimes called the “Republican” party but usually called the “stupid” or “slow” party — and told them to man up, quit whining and fix the horrific mess that they are so much responsible for. They may have messed their diaper, but he’s not changing it for them.

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Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

So what now?  Mitt Romney and Republicans can now run on repeal as a big issue in the campaign.  They should emphasize the tax argument when they do, because this tax hits everyone.  The ruling may alleviate some of the bad polling the ACA has received, but probably not by much.  It’s going to remain deeply unpopular for the next few months.  On top of that, the decision to uphold the law also means that the fight is still on over the HHS contraception mandate.  We can expect the Catholic bishops to keep up the pressure on the Obama administration’s attempt to define religious expression for the purpose of controlling and limiting it — and we can probably expect the challenge to it to reach the Supreme Court, too.

This started off as a political fight, though, and it’s now clear that it has to get resolved as a political fight.

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Finally, while I am not down on John Roberts like many of you are today, i will be very down on Congressional Republicans if they do not now try to shut down the individual mandate. Force the Democrats on the record about the mandate. Defund Obamacare. This now, by necessity, is a political fight and the GOP sure as hell should fight.

60% of Americans agree with them on the issue. And guess what? The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. 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.

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.

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If you were above all interested in the bill being struck down, it was mostly a loss. On the other hand, if 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.

Do Republicans have a torpedo for Kagan's confirmation?

Do Senate Republicans on the Judiciary Committee have a torpedo that could sink Elena Kagan's all but otherwise certain confirmation to the U.S. Supreme Court?  They might, if Ms. Kagan and/or the Obama regime are forthcoming in answer to a recent letter transmitted by committee Republicans earlier today.

Led by ranking member Jeff Sessions (R-AL), every one of the Republicans signed off on a letter with 13 specific questions:

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(CNSNews.com) - All seven Republicans on the Senate Judiciary Committee sent a letter today to Solicitor General Elena Kagan demanding information about whether she at any time as a member of the Obama administration discussed the suit filed by Florida and numerous other states challenging the constitutionality of the health-care law signed by President Barack Obama--an action that under federal law could require Kagan to recuse herself from the case if she is confirmed as a justice and it comes before the Supreme Court.

In the letter, the Judiciary Committee Republicans pose 13 questions to Kagan. The first seven directly probe whether she was in anyway involved in the administration’s planning or response to the lawsuit brought against Obamacare by Florida and other states. Questions eight and nine probe whether she discussed the underlying constitutional issues involved in the health care legislation. Question ten asks her why she should not recuse herself from ruling on Supreme Court challenges to the health-care law if she discussed it or the underlying constitutional issues during her service in the Obama administration.

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Obamacare was the centerpiece policy goal of the regime, and its passage was the most painfully won prize of this Congress.  The regime is not about to give it up, and you can count on a tooth, nail and claw battle throughout the process of judicial review.  Is it likely that, as Solicitor General, Ms. Kagan was asked to provide advice on the suits filed by Florida et al and Virginia?  The answer is almost certainly "yes."  There's no way that an ambitious regime lawyer sat idly by whilst the regime determined its response to the lawsuits challenging the regime's most precious trophy.

The question is whether the regime invokes executive privilege or privilege of counsel in refusing to answer the GOP's letter.  If they do, all 41 Senate Republicans have sufficient grounds for supporting a filibuster of her nomination.  If they don't, then they disclose that yeah, she did provide counsel and well... yeah, she's gonna have to recuse herself from the case when the matter comes before the Court (and it almost certainly will).


Do the Senate Republicans get the answer?  Remember, Senator Sessions is himself a very good lawyer, having served as a US Attorney in Mobile.  Good lawyers never ask questions that they don't already know the answers to.

The regime probably won't answer.  The White House will probably claim privilege, giving the GOP a good reason to filibuster her and facing that, giving the White House a good reason to pull her nomination.

"Fire control, give me a solution on that target, load torpedo bay alpha and fire on my command."


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