I’m off work today for my older son’s birthday so I won’t be checking in too much. But while he’s busy chasing the dog with his new RC helicopter, I thought I’d share some thoughts about what yesterday’s decision means.
As I said yesterday when the news first broke, I hadn’t made any predictions about what might happen because I’m not a lawyer and so any prediction I’d make would just be a guess. If I had made a prediction, I would have been hilariously wrong as the prospect of John Roberts breaking with conservatives to uphold the law would not have occurred to me. Likewise, you should remember that I’m not a lawyer when I share these thoughts about what I think this means going forward.
I think this picture sums up the general feeling about people like me expressing opinions about the ramifications of SCOTUS decisions about constitutionality:
Having said that, let me dazzle you with my unqualified view.
The first thing that struck me was that the Court found that the mandate was NOT constitutional under the Commerce clause, which was the justification used by Congress when passing the bill. My first reaction to this was that it was a pretty big deal as much of what we see as the New Deal and 20th century America is based on an interpretation giving Congress wide powers under the Commerce clause. If the decision was changing our understanding of Commerce, then that would be a big deal and a significant conservative shift.
Obviously I wasn’t alone in that initial interpretation but other (actual?) scholars pointed out that the ruling might actually be pretty narrow. The decision seems to say that inactivity (not buying insurance) does not fall under Commerce, but doesn’t significantly change the justification for previous laws passed with the Commerce clause.
Roberts held that the mandate was constitutional because the mandate may be construed as a tax, which is clearly constitutional, regardless of whether the authors intended the mandate to be a tax, or even if they knew it was a tax but were trying to pretend it wasn’t. Roberts rules that the court has an obligation to adopt the framing of a law that allows it to be constitutional. Taxes are clearly constitutional, and since the mandate can be seen as a de facto tax (with a rebate given to those who have or purchase insurance), the court must find the law constitutional.
Is anyone surprised at the conservative freakout over this? Conservatives who claim to love the constitution and love their country and who 48 hours ago thought John Roberts was a great Chief Justice are now threatening to move to Canada (LOL), resort to violence, and dreaming of ways to remove Roberts from the bench. Some conservatives only respect the institutions of government, including the constitution, when they provide the results they want.
The other major ruling didn’t receive nearly as much attention but may (or may not) be very consequential. SCOTUS ruled that the federal government could not punish states who opt out of the Medicaid expansion that provides insurance to people making up to 133% of the poverty line. Elena Kagan, who conservatives were absolutely sure could not possibly be impartial in this case and demanded her recusal, joined with the majority in ruling against the administration on this part of the law.
People are speculating on whether the Romney campaign will now use the healthcare issue to argue for his election, or if he will drop the issue and focus on the overall economy instead. His lackluster speech yesterday sure hinted that he would make it an issue, but by tomorrow he may have Etch-a-sketched a new strategy. The conservative base is certainly fired up for repeal and reports are that Romney raised millions of dollars “organically” within just hours of the decision.
Some are arguing that Romney will drop healthcare because in order to repeal it he will have to stop a lot of reforms that people really like. If he aims to keep those reforms uninterrupted, the “repeal” of Obamacare will not just be a single-page bill as promised, but one of those thousand-page monstrosities that conservatives claim to hate so much.
Others say that there’s no way that the Republicans will have a filibuster-proof majority and therefore won’t be able to repeal Obamacare anyway. There is also some disagreement whether the mandate becoming a “tax” means that it can be repealed through reconciliation. Both of these opinions ignore that Republicans won’t care about a filibuster or reconciliation if Romney takes the White House and they get 50 Senators. If that happens, the Republicans will “reform” the filibuster and the Senate will once again become a body where simple majorities pass legislation. Bank on it. (And for the record, I fully support the abolishment of the filibuster, whoever wins in November.)
So I expect that Romney will campaign on repealing Obamacare, and I expect that if he wins, and the Republicans take the Senate, it will be history. This isn’t over, and it all depends on winning the election in November.
Well, I had more thoughts but in a development that is surprising to no one at Casa de Wiesman, my son’s RC helicopter has already stopped working. I’ll be driving him to Radio Shack for a replacement (I very uncharacteristically purchased the “extended warranty” for this toy, which has turned out to be a win) and probably won’t be posting for the rest of the day. Have a good weekend everyone.