I have not been as overwhelmed with grief at the Supreme Court’s decision on the Affordable Care Act as some of my fellow conservatives. I was wondering whether I was just being naive, but since I just listened in person to a talk from Paul Clement, who actually argued the case on behalf of the states before the Supreme Court, and his feelings seemed to resonate with my own, I feel a little more confident now to share what might be some of the silver linings in this decision:
1. I know a lot of conservatives are writing now on how the power of the federal government just expanded dramatically, and they may be right. But I think it’s possible that the long term effect will be rather to narrow — not legally but practically and actually — the sphere of government power. First of all, placing the ACA under the Taxation power instead of the Commerce power places greater limits on how that power can be used and dramatically softens the penalty for non-compliance (you simply pay a tax, you cannot be jailed or otherwise punished for failure to purchase health insurance). Congress cannot compel you to purchase insurance; it can only compel you to pay a non-extreme, non-coercive tax if you wish not to purchase insurance. Second, by laying waste to the Commerce Clause argument and making clear that this sort of thing can only be done through the taxation power, the decision may make it harder to pass these sorts of laws in the first place. You cannot hide in the subterfuge of the Commerce Clause — or, if you try, everyone will say, “No, we know better now, this is and must be a tax.” Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation.
2. By placing the ACA under the umbrella of the tax power, Roberts may have made the ACA easier to overturn by several orders of magnitude. The ordinary process, of course, requires 60 votes to overcome a filibuster in the Senate. But when it concerns budgetary matters, including taxes (like the Bush tax cuts), 51 votes are sufficient to put the law on hold for 10 years. So, theoretically, 51 Republicans will be capable now of overturning the ACA at least for ten years (at which point it could be reviewed again). Fifty-one Republicans could have attempted this in any case, but now they can do so with much greater plausibility because this is a matter of taxing and spending and not regulation of commerce.3. The importance of the ruling on states and Medicaid should not be lost in all of this. The administration’s claim that it could remove all medicaid funding for the states that refused to expand medicaid in the way the administration wants was rejected. The administration can condition new, additional funding on states’ cooperation, but not the preexisting funding. This is a big difference. It will be much easier for states to opt out of the medicaid expansion.
4. The spin war will be interesting to watch. President Obama and his allies clearly did not want to label the mandate as a tax – he denied it in unequivocal terms to George Stephanopolous. Now they will have no choice. President Obama and Congressional Democrats just became the owners of a considerable tax hike – what one of my colleagues is calling “The most deceptive tax increase in American history.” The Obama campaign will frame it as a tax on “the rich” — since you only pay the tax if you are a taxpayer who is capable of purchasing coverage but chose not to purchase it. But look for Republicans to start referring to the “Obamacare Tax.” This is one way in which this can redound to the benefit of Republicans: everyone from Romney on down can now press his opponent with the question, “Are you for the Obamacare Tax or against it?”
5. Finally, and perhaps most importantly, I think this places the central issue of the election very clearly in front of the voters: Do you believe that the government ought to have more power over your life, or do you think it should have less? The Supreme Court is not going to save us against our own poor electoral decisions, if the people we elect go on to pass foolish taxes. Conservatives cannot rely on the Supreme Court as a backstop. So I think you will see the Tea Party movement revived, less focused on internecine battles and more focused again on the fundamental questions of the role of government.