Five Possible Silver Linings in the Obamacare Decision

Five Possible Silver Linings in the Obamacare Decision June 28, 2012

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.

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  • Freddie Sykes

    I will rank this as the 2nd best possible outcome, the first being a complete overturning of the law. I believe that, since the SCOTUS declared it a tax, persons subject to this tax will be able to resubmit the law to the courts once they start paying the tax. The worst outcome I expect will be the number of employees who will be without employer sponsored health insurance due to increases in cost of benefits, especially when compared to the tax, and those who lose benefits based on matters of conscience.

    • I see this as the best outcome. I didn’t before the ruling. I wanted it overturned completely, but let’s face it, that outcome would have energized the progressives to push for single payer, and I fear the American people would have been sympathetic on that. I think this ruling makes that option much more difficult. Now, ObamaCare and Progressives’ dream of single payer are over. Taxes exist in a political realm not a constitutional one. Because they are so easily repealed no Democrat will risk his political hide for them.

      • Molly

        But, if it’s not repealed, it’s going to bankrupt the insurance companies. And then the government will have to bale them out. Then who owns the insurance companies? A single payer? I still agree with all of the silver linings, and I just see this as the worst possible catastrophic outcome. But still an outcome that needs to be considered.

        • Molly

          But then would a bale out have to be approved in Congress? With the possibility of filibuster?

    • Bob Hildebrand

      Finally the deadbeats get their due. It frosts me to no end that my employer and I have been supporting deadbeats that use an ambulance to get to the hospital so they won’t have to pay cabfare etc. I have a job and insurance and I’m tired of paying for folks who say, “I’m healthy, I don’t need insurance.” Or “that costs too much, they can just let me die on the street.” (They won’t.) Health care is not really an option in the US. If you are sick you get treated. If you have insurance, you pay, if not, someone else pays. Isn’t it time for a change? I’m sick of daedbeats!

  • The False God

    I’m sick of looking for silver linings in the contents of used toilet bowls.

  • I’d be a lot more sympathetic to the Republican cause except for two things:
    1) If someone shows up at an emergency room without insurance, they are REQUIRED to be treated, and those of us with insurance pay the cost in higher health care costs and premiums. If the republicans can put the breaks on this without either compelling people to have insurance OR tossing people out on the street, be my guest.
    2) Republicans had control of the House and Senate from 1995 to 2000 and arguably had considerable control during the Bush years of 2000-2008, yet they failed to propose any sort of health care program that would have expanded coverage. Yet when the Democrats (for the second time) attempted health care reform, Republicans screamed bloody murder. As has been noted, healthcare reform has been attempted for literally decades. If Republicans didn’t accomplish it, you can’t blame Democrats for taking a shot.

    • I wish I had a dollar for all the uninsured folks I spent the night with in the operating room. The hospital, even though a trauma center, was usually clueless in billing these people and was always calling my office to get ID info. The solution, in my opinion, is cheap catastrophic coverage, maybe as part of auto insurance. Young people, who are most of the free riders (in Nancy Pelosi’s phrase) need catastrophic coverage and it would be cheap, like life insurance. Your second point is valid although the GOP proposed HSAs against heavy opposition, especially from Ted Kennedy. They also backed HMO reforms when HMOs were the de jure solution.

    • argasdoc

      Tom, Republicans did propose & passed a health care plan during the Bush administration-have you heard of health care savings plans?? This type of plan actually begins to address your concern with #1. When people are putting away $ for their own health care expenses & find out that if they use those dollars wisely, they end up at the end of the day with more $ in their savings account. When people have to spend $ out of that account for day to day expenses & have an insurance plan that covers them & their families for catastrophic health care needs, they become wiser consumers of the commodity which is health care. This type of system actually drives down cost of health care & makes people more responsible for day to day expenditures.

      • Bob Hildebrand

        I have one of those plans and it doesn’t exactly work the way you suggest. You estimate how much you will pay for health care for the next year (good luck with that). It gets taken out of your pay “pre-tax” (that’s where the savings could be if you pay income tax). I use it for co-pays, and meds. Never has it taught me to be a “wiser consumer” other than the fact that I’m in a 28% marginal tax rate so I save 28% on every bottle of asprine I buy. If you end up having withheld too much, you lose the remainder. It’s a nice tax saving for those who pay income taxes and have predictable medical bills. If you don’t pay income taxes, or your marginal tax rate is low, it can be a crap shoot or a disaster. I say its a benefit for the wealthy and zippo for the poor.

    • Rich K

      The actual percentage of non payers is not even a blip on the cost radar and most of it is handled through the Medicaid budgets of each state so thats a straw man argument. You seem to imply that ony the Fed can change the way we pay for HC plans because only they can coerce anyone into action.Thats a bad idea on all levels. Just open the markets to actual interstate competition and fix the tort issues and your almost home. The rest is just minutea on pricing.Or move to canada and take thier system for your own.Its already what you imply is needed here so why wait?

      • Bob Sacamento

        Was going to make this point myself until I saw you had written it already. HEY, FOLKS! WHAT RICH K SAYS!!!!

    • Jul

      From a hospitals standpoint most of those people will still not have to buy the insurance and will now be covered by your tax increase. Either by the state and federal expansion of medicaid or they will just pay the IRS fine ( these people don’t really pay taxes anyway – they fall into the earned income or little income profile) so now with the 21 tax increases that will be passed on to the various medical communities your taxes and you health insurance will go up. This bill did nothing to force the ones without insurance to pay. the poor still don’t pay the rest of us will now just pay more.

    • betsybounds

      Re: Your point #1, I’m wondering whether you think the Democrat program doesn’t compel the rest of us to pay for the medical expenses of those without insurance–and at what is almost certain to be a far higher cost than what we’re paying now.

      Incidentally, I know of no current practice that involves “tossing people out on the street.”

    • Barbara Rose

      Your information is not correct. Republicans have tried to address healtcare reform. Democrats shot it down. Republicans were not in power all the years you have claimed. Government does NOT need to grow, it needs to get smaller. Huge amounts of money are being slipped thru too many hands. Less hands, less money needed. Cut government buracracy in half. Investigate who is getting handouts i.e. welfare, medicaid, disability, foodstamps, cell phones, housing, $ for heat gas electricity, only those who truley need help should receive it. Problem is the United States of America is being milked dry by parasites.

      • Bob Hildebrand

        Barbara, SO TRUE. We need to get rid of the FDA, FCC, FAA, NIST, CDC, and probably the DOJ, FBI, DEA, DoD, CIA, TSA, NASA. If we could just let Exxon, Boeing, BP, Iowa Beef Packers, JP Morgan Chase, GM, NYSE get the handouts instead of my neighbor who broke his back in a bike accident while he was between jobs without insurance (the piker) we would have a much bigger if not better situation. Problem is the United States of America is being milked dry by parasites.

    • Peter Kastner

      The Republicans passed a major health care expansion to Medicare in the prescription drug benefit, which Obamacare expands by closing off the “donut hole”.

  • Punditius

    6. Obama & the Dems can’t campaign against “the Republican Supreme Court”.
    7. The decision might just be correct.

    • DougH

      Your #7 is wrong. To reach the conclusion he did, Roberts had to ignore both the structure of the law and the clear intentions of those that passed it. According to his logic, any penalty imposed by Congress is a tax regardless of its purpose, the text of the law, or the clear statements of its supporters in Congress. And the requirement the Conservative like that all legislation include a statement of what part of the Constitution gives Congress the authority to legislate in that particular instance? So much wasted paper – according to Roberts the Court is free to simply ignore it.

  • Elizabeth Scalia

    I, also, think this is no a ruling to get hysterical about and for similar reasons. Roberts has essentially said to the American people: this is back in your court. If you feel like governance has happened without your consent, make it clear at the polls.” I think we have become too comfortable with all of our laws coming or going by the bang of a gavel. Not good for us. The only really dreary thing is that now we will have to listen to the press try to resell us on the wonders of socialized medicine. And I am not sure how this plays out re the HHS mandate and those lawsuits.

  • obladioblada

    “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.”

    The part that you’re missing is that this is deliberately being done to force us into single-payer.

    The tax is dramatically lower than insurance premiums, for employer and individual alike.

    The terms of Obamacare deliberately drive up the cost of insurance. No one can be declined for insurance, even if they’re in end stage cancer; everyone is required to buy policies that cover everything the feds mandate; less expensive policies that cover most people’s needs are forbidden; adults are children until they’re 26, so Mom & Dad’s premiums are higher, and so on.

    While deliberately driving up the costs of private insurance, the feds give employers and individuals the option of paying a dramatically lower tax instead of paying for themselves. If they pay the tax, they’re thrown onto the government plan. Having employers drop their expensive insurance and pay the substantially lower tax is considered a feature, not a bug– it throws even more people into the government plan. The private insurance system collapses, by design, and everyone now is forced into government care.

    The fun has already started, with the feds ordering people of faith to drop their scruples to cover procedures and medications that are anathema to their beliefs. Soon, the feds will tell us who does and doesn’t deserve various procedures, likely on utilitarian grounds. You know, people who are older, or fatter or have disabilities or serious medical conditions don’t deserve as much care. No scoffing, we’re already seeing would-be authoritarians call for mandates to force people into whatever the health fad dujour deems necessary.

    This is far, far more, than the mere inconvenience of a tax.

    • Punditius

      No Big Gulp for you! Shut up and eat your broccoli!

    • Timothy Dalrymple

      I wasn’t really commenting on other parts of the bill, such as conscience problems and abortion problems. Those were not at issue in this ruling, as you presumably know, and legal challenges on those points will move forward. I twas just talking about the mandate.

    • Surprise

      “The fun has already started, with the feds ordering people of faith to drop their scruples to cover procedures and medications that are anathema to their beliefs.” Nooo….”people of faith” are choosing to drop medical coverage that does not align with their religious doctrines. And, those very same “people of faith” are continuing to align themselves with the abortion and death-penalty supporting U.S government in order to receive billions of federal dollars for providing social services.

      One does have to wonder: the Catholic Church is peculiarly selective in its outrage (i,e. it’s fine to accept billions of dollars in funding from an abortion and death penalty-supporting federal government, but it’s not okay to be affiliated in any way with a medical insurance company offering contraception).

  • you’ve forgotten one other item. By defining it as a tax, they have already set up the next appeal. Revenue/Tax initiatives must begin in the House, whereas ACA was first introduced in the Senate. If it is a tax it is unconstitutional on its face.

    • Timothy Dalrymple

      You and Terry raise an interesting issue. I’ll look forward to asking some of the ADF attorneys about that tomorrow.

    • 5ftflirt

      In the original act of deception, it started in the House as an unrelated tax bill which was fertilized in vitreo by the Healthcare Bill, and then birthed in the Senate.

      • Timothy Dalrymple

        Yep, it technically did begin in the House. Reid used a “shell” bill – it’s a long story, but this apparently is not an effective route of opposition.

  • I should have said next lawsuit, rather than next appeal…

  • Koblog

    Is it really any surprise that one branch of the ever-growing Federal government votes to support a power grab by the other two branches of the Federal government?

    And you thought the Supreme Court was “of the people.” Rubes!

    27 states sue to stop unprecedented expansion of the Federal government by appealing to a court that IS the Federal government.

    What’s wrong with this picture?

    Do we expect ANY part of the Federal government to reduce its own power? Ain’t gonna happen.

    Bankruptcy will be the only brake.

  • Terry Pack

    #6 – The ACA will be overturned as soon as the first person is taxed for not having insurance. The anti-injunction act will no longer apply, and the ACA can return to the courts, and the gory details of how this horror was born will be revisited in the public.

    Why? Because now that we have established that it is a tax bill, we must remember that due to the bicameral arguments, Scott Brown’s election, and Stupak’s refusal to entertain government-funded abortions, this law originated in the US Senate – a Constitutional violation, as revenue bills are supposed to originate in the US House

    • Timothy Dalrymple

      Very interesting, Terry. Thank you.

    • Punditius

      I don’t think that the SC will touch the origination argument with a 10 foot pole.

      • clazy8

        “I don’t think that the SC will touch the origination argument with a 10 foot pole.”
        Why not?

      • Mwalimu Daudi

        Exactly. The Supreme Court swallowed the unconstitutional camel today, and are hardly likely to start straining at the gnat of origination in future cases.

      • CMN

        I think you’re right. It’s true that the substantive content of this bill originated in the Senate, but they introduced it by amending a preexisting House revenue bill. The origination clause has no teeth, and doesn’t even make much sense in principle since the 17th amendment.

        • Timothy Dalrymple

          I believe CMN is correct.

    • DougH

      According to Roberts, the anti-injunction act doesn’t apply now, because Congress didn’t label it a tax in the body of the law. So according to Roberts, the mandate is a tax according to the Constitution because of its nature but not a tax when applied to other acts of Congress because of its label.

  • Noel

    Why are there not any different views to Mr Timothy Dalrymple? I know many evangelicals who have left of centre views. In Australia we have universal health insurance and the sky has not fallen in. Sometimes I feel conservatives come accross as grumpy old men. Get over it, Obama is going to get a second term. I once head a comment by Jon Stewart ” Conservatives oppose gay marriage and support traditional marriage because they do it so often”

    • Timothy Dalrymple

      American evangelicalism is exceedingly complex and just about every viewpoint is represented on just about every issue.

  • A_Nonny_Mouse

    Commenter Elizabeth Scalia (Hi, Anchoress!) said: ” Roberts has essentially said to the American people: this is back in your court. If you feel like governance has happened without your consent, make it clear at the polls. ”

    How on earth do We-The-Peons force our Duly-Elected-Liars to behave and vote in the manner they promised they would, back when they were campaigning ? We vote for them based on what they SAY they’ll do in the future, but we have no control over how they vote when “the future” has arrived.

    So we’re just supposed to keep trying and trying to find an honest politician, electing a new one each 2/ 4/ 6 years, and the only punishment we can inflict on the sonofagun when it’s obvious that he’s a lying liar is just to sigh, and move on to elect ANOTHER lying liar the next term????

    That’s really NOT satisfactory. At the very least, they deserve tar and feathers when they screw us over. In certain cases, liberal application of a horsewhip would be appealing…

    • JCC

      A_Nonny_Mouse is correct…I keep looking for an honest politician. They start out that way, but the system corrupts them. Good luck on finding one that stays honest!

    • richard40

      It is the only thing we can do. While they are running, try and make their promisses as free of loopholes as we can. If they break their promisses, we do not reelect them, and we reelect the ones that follow through on their promisses. That is one very good reason why obama ust go now, his record on breakingpromisses is one of the worste I have ever seen. By the way, for all the charges about romney flip flops, his record on keeping promisses is actually fairly good. Romney has changed his positions before an election, and after his term is over, but he has almost never gone back on something during his term of office. I can live with somebody changing their position before the election, or as a result of an election, as romney did on health care, it indicates they can learn something. It is only when they change it during their term that it is unforgiveable, unless it is the election that changes it, like when obama should have changes positions after 2010 repudiated his 1st 2 years.

  • JB Mohr

    So basically the Federal Government has established a new income stream that will be very difficult to give up. What will stop them from redefining the minimum standard for insurance from having no insurance to having insurance that is not quite good enough? Anyone with a policy that is not good enough could then keep their policy and pay a small tax (penalty ?) thereby expanding the pool of revenue generators.

    • Timothy Dalrymple

      That seems very plausible to me.

  • Frederick Flint

    It’s not clear to me why Congress has to call ACA a tax, they didn’t seem to before. Just because the Supreme Court calls ACA a tax does that mean Congress or the President must? I don’t see why both branches of government can’t keep playing this game for anything they want. Instead of taking Congress’ word for what they were doing it seems the Supreme Court reinterpreted their words as the Supreme Court saw fit. This is basically a version (or inversion? or perversion?) of the “Living Constitution” or “Originalism” principle (depending on how you look at it). The Supreme Court gets to call it one thing and avoid responsibility and Congress gets to call it another and avoid responsibility. Every branch of Federal governments get what it wants. And I don’t place much hope on Republicans changing anything. I suspect they are quite content with the outcome as it gives them more power, something to fuss about and something to play with (read that as “make it work”) for the long term foreseeable future (or at least till this bunch retires).

  • sonofamitch

    1. SCOTUS recast it as a tax, not Obama or the Democrats. They will continue to deny it was a tax. In the future, Congress can pass any similar legislation with penalties, denying to the electorate that it is a tax, and count on SCOTUS (under this precedent) to uphold it if it could have been done as a tax nonetheless. It makes a shambles of the accountability for tax measures that the Founders intended, as Kennedy points out.
    2. The only provision he analyzed as a tax was the mandate penalty; thus, the decision only allows a 51 Seante vote to overturn that provision. The rest of the beast will take 60 vote cloture to repeal. Read the Kennedy opinion; that clearly would have held the whole ACA unconstitutional, if Roberts had only joined.
    3. The distinction between new and old Medicaid funding can be eliminated in the next Congress; at some point it all is “new funding.”
    4 and 5 are political rallying cries. Any victory is only good through the next election cycle (assuming Republicans are not as easily bought by crony capitalists as Democrats). The Constitution now provides no protection against crony capitalism mandated purchase of private commercial products.

    • Timothy Dalrymple

      1. President Obama and the Democrats can call it a banana, but people won’t believe it.

      2. Not necessarily. Since the mandate was framed as the essential funding mechanism for the ACA, the Republicans can plausibly claim that the whole needs to be put on hold – or at least those portions they want to put on hold. If the Democrats had passed this in pieces, they would have made it much harder.

      3. No, I don’t believe that’s true. As long as the states are receiving Medicaid funding, that funding will be considered the old, pre-existing funding. It was critical where Roberts wrote that the federal government cannot dragoon the states into administering the federal programs.

  • Esteban

    Chief Justice Roberts: “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.”

    Really? Roberts is writing all alone when he does his Commerce Clause analysis and reaches this conclusion. No other Justice joins him in this portion of his opinion. So where does he get that the Court so holds? Although it is obvious the four joint dissenters agree, their opinion is only a dissent, it is not the law. So does the court really hold what Roberts says it holds? One more lefty judge on that court and they could easily dispense with what Roberts says the court “holds” today as so much obiter dictum. Am I wrong?

    • richard40

      You are right. If roberts had demanded that the 4 leftist justices completely agree with his interpretation, that 1st it was a tax, and second that his commerce clause interpretation was correct, that might have been worth something, because then they wouod have been bound by their own words. As it is, he gave them what they wanted, letting the law stand, and got zippo in return.

      • Timothy Dalrymple

        I’m not sure that’s correct. The four judges in the dissent agreed with his analysis of the commerce clause. That makes for five judges and will, I believe, have power. I don’t remember the relevant precedents here, but this is what I was overhearing. I have to confess, though, that I’m not clear on this.

  • David

    “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.” Did I miss something? Roberts could have found the law unconstitutional! Then Congress would not need to overturn it.

  • JF

    “Tax, mandate, regulation… ” Words that don’t matter. When the government can punish you for doing nothing, you don’t live I’m a free country. Try not paying the “tax” and see what happens. There are no silver linings, just ever gathering storm clouds. The people won’t correct the error, because the electorate is majority foolish and gullible. Liberalism always advances. Roberts is a liberal word-twister. And he failed us.

  • I am most grateful that Roberts said it was unconstitutional under the Commerce Clause. I always said that they could have made it constitutional by going in under the taxing clause, and in spite of the law, that is what Roberts found. I agree that it will be very easy to kill it as a tax law, but even if it stands, you can foresee certain unpleasant results coming down the pike.
    1. Everyone is going to drop private insurance that can. After all, why bother buying it when you can get it when you need it.
    2. As a result, employer provided health insurance is going to skyrocket as they have to cover all the possible pre-existing and last minute users, forcing employers to drop coverage.
    3. The Republicans need to remind everyone everyday that their insurance coverage is being driven away from reasonable prices by the bad choices made by the government. And it’s the Democrat’s fault.
    Liberals can only exist as long as you believe that government can get things done that can’t be done otherwise. When you see the government forcing you out of insurance, you will know who to blame.

    • richard40

      Roberts saying it was unconstitutional under the commerce clause, while being constitutional under the tax clause was meaningless, because he did not follow through and actually reject the law on that basis. Instead he rewrote the law to make the illegal mandate into a legal tax, usurping congresses role. What is to stop future congresses from doing mandates again, and then rely on roberts to call them taxes after the fact.

      • Timothy Dalrymple

        Well, there’s a basic question of plausibility — but presumably they wouldn’t want to go through the whole judicial review process every time on this score.

  • Mwalimu Daudi

    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.

    Really? How did you reach that conclusion? The Obama administration will simply go on denying the mandate is a tax, and the DNC/MSM axis will cover up for them. Obama has a billion-dollar megaphone that Republicans have no hope of out-shouting.

    The Supreme Court had the chance to uphold the Constitution. They failed, and there is no silver lining whatsoever in that.

  • John

    You speak as if the Republicans will do ANYTHING to thwart this. As always, they will not.
    Republican politicians LOVE Big Government. Always have, always will.

    • richard40

      If any repubs do not vote to repeal obamacare, then we get rid of them too, in future primaries. That is what the tea party is for.

  • I agree this places the central issue of the election very clearly in front of the voters. Don’t forget there is still the HHS Mandate battle, which would have disappeared if this was repealed, so Obama’s war on the Catholic Church is still very much center stage…

  • Ryan M.

    The upshot is that ROberts took complete leave of his senses.

  • Both the article and the thread help me understand why I, too, felt OK about the decision. I don’t think it is just sour grapes because if the court had saved the conservative cause I felt it would have embittered the opposition for years to come for the same reasons a TKO raises doubts in everyone’s mind. I also have to say that I had the same thought as Elizabeth Scalia above that the Roberts found a way to put the decision back in the voter’s court. If the law loses in the court of public opinion then that is that. When I heard the decision I also had the thought that subtlety can be a great virtue in a Chief Justice. There is another reason why I was not too fussed before the decision and that is that the American health care system is unsustainable simply because it costs about double to achieve the same health outcomes as the rest of the developed world. The US system cost 16% of GDP before passage of what would be more accurately named the Unaffordable Health Care Act. Australia, where I live, manages BOTH a public and a private system that complement each other on 8.5% of GDP. I know from experience what a well run health care system looks like. If you want to see that in the US pay a visit to a Mayo Clinic. Perhaps the Democrats rammed the bill through with the intention of bankrupting the system more quickly so that a government take over would result, but that would be to give them more credit than I think they deserve. Continuing to spend an extra 7% or so of GDP will accomplish that on its own and that level of expenditure will be defended by the people receiving that money with everything they have against anyone of either party trying to rein costs in. I believed the bottom line of Obamacare is that they managed to lobby for what is actually a bigger slice of the pie than 16% of GDP. One way or another there is a lot of pain ahead for the American healthcare system

    • Barbara Rose

      Perhpas you are of the “elite” of Australia. I have several family member who live there and in England, and none of them are happy with the governments healthcare. They bypass the socalled free/gov healthcare by paying out of pocket (kind of like black-market style) to better medical services. Lucily they are in a position to do so. Please don’t try to tell me gov of UK is going to pay you to come to the US and use the best of healthcare i.e. “Mayo Clinic” on their dime. That is rediculous. And, why the heck do you think foreigners frequent OUR doctors and hospitals and bypass yours? Hmmmm, let’s see, maybe because they want to get the BEST of care available in the world?

      • No I’m not of the elite – I’m an ordinary pensioner and both a US and an Australian citizen. I didn’t say I was happy with the public system here in Australia, just that the combined public and private system here produces the same health outcomes as the US system for half the cost. Hans Rosling’s TED talk gives a good world overview of health outcomes worldwide. It isn’t the medicine – it the way the US system is structured that results in a different financial result. Nor was I suggesting that any national health service like UK or Australia or Canada, for that matter, would pay a bill for one of its citizens at the Mayo Clinic – I was saying it is an example of an administratively well run operation, both medically and financially according to what I have personally seen and read. What Americans by and large don’t know is something that every travel agent outside the US knows – that medical travel insurance for non Americans traveling to the US costs – yup – twice as much as for other destinations. I don’t see how America is going to change its system to become more cost effective – the entrenched interests are just too powerful for the political system to work effectively. The Democrats have made some progress in increasing coverage to more people, but I seriously doubt they have managed to reduce the percentage of GDP – probably the reverse. Nor do I see the Republicans offering any ideas. So unfortunately I think it is likely to be reform by collapse.

  • Laka

    You can call it spin if you want to, but I’m becoming more and more inclined to buy it. I do think Roberts gave the Dems a bright, shiny penny while he took away the sack of gold with the other hand. We may have a character of John Marshall-like genius on our hands.

    That goes double if Roberts really considered the Senate 51 votes to stall (instead of 60) that Dalrymple reminds us of.

  • Doug Wenzel in San Diego

    “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….. 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). ”

    I get that you could overturn the mandate/tax component in this fashion, but could you actually overturn the entire law in this fashion. If not, I might be personally better off without the mandate/tax, but our whole health insurance system would be financially strangled without the forced contributions resulting from the actuarially unsound regulations imposed on health insurers and healthcare providers.

    Someone, please elaborate on this point. Otherwise, overturning only the mandate component leads to financial collapse of the healthcare system … leading to the leftist Nirvana of single payer.

    • Or the libertarian Nirvana of a free health care market.

    • Tim

      The ACA was passed under reconciliation, it can voted out under reconciliation.

  • JR Ewing

    Roberts was simply brilliant here and absolutely did the right thing. He basically encircled the government and ruled against the most important (and insidious) justifications for Obamacare that would have spawned horrible new precedents for years to come and he handed the GOP a bloody shirt for the election that Obama now cannot disavow or run away from…. while all at the same time insulating himself and his court from charges of partisanship.

    I think it is enormously important that Obamacare be settled politically – ruling against the constitutionality of the law would have let Obama and all of those odious Democrats off the hook for their shameful behavior in March 2010 – and by now pushing the issue back to the voters, Roberts managed to avoid creating a “Roe v Wade” of the left’s very own that would have festered for years or decades to come.

    They will be talking about this for years to come in law schools.

  • The central issue of our times:

    For what are you willing to be a slave?

    For what are you willing to enslave others?

  • One possible positive effect could be that as more and more employers see a cheap way out of providing health insurance for employees, the tax deduction for health insurance will migrate to individual purchasers rather than employers.

  • matt

    51 votes to stall the tax portion of a bill that has NO SEVERABILITY CLAUSE…

    If one part is put on hold, the whole must be also….

    • Timothy Dalrymple

      I just had a lengthy conversation about this with Ken Klukowski from the Center for Religious Liberty Policy. He says that anything that reduces the budget deficit over a ten year span can be addressed in the budgetary reconciliation process. Since the expenses of the ACA vastly outweigh the income from new taxes, voting down the ACA would dramatically reduce the deficit, and therefore the entire ACA can be struck through the reconciliation process with 51 votes.

      There are some details regarding an appeal to the parliamentarian, but the parlementarian’s ruling can always be overruled by another vote of 51 senators. So, to make a long story short, 51 senators who are willing to do this can bring down the ACA through the reconciliation process — and the fact that the mandate is now regarded as a “tax” instead of a commerce regulation is immaterial.

      • Bob

        But wasn’t Obamacare originally *passed* under reconciliation? So how could it “reduce the deficit over a ten year period” when it was passed in 2009, and also “reduce the deficit over a ten year period” when it is (presumably) repealed in 2013?

        Secondly, in your other article you stated that under reconciliation OCare could be put “on hold” for ten years, when it could be reviewed again (and, presumably, if NOT reviewed then it would snap back into place at that time). But…if it was passed under reconciliation (which 10 year clock runs out in 2019), and then repealed under reconciliation in 2013…wouldn’t that mean that no further action would be needed in 2023, as there would then be no underlying OCare law in abeyance, having itself lapsed in four years earlier, that would need to be reviewed?

        • Bob

          Oh, and one other thing: Now that ACA is officially a tax bill, the Constitution requires that all taxes originate in the House. So…couldn’t ACA be challenged in court on those procedural grounds?

  • Mike H.

    Message for the Administration, “Beware of Greeks bearing gifts.”

  • Is there a conservative plan to address the problem of 40 million people without health insurance, and what is it?
    I ask because I am also an evangelical, and while my brother George W. Bush was bashing around the White House, he didn’t seem to have any desire to address this problem. I voted for Obama because he said he was taking this on, and he did, and the Supreme Court upheld it. Boom.
    My fellow evangelicals are now chattering endlessly about getting rid of this law. They seem hellbent on defeating any effort at universal coverage, which is a goal that every other wealthy country (and a few modestly-wealthy countries) has achieved. I want to know why. For conservatives to suggest that our country will trundle on forever, always with tens of million of people uninsured, is heartless and profoundly unChristian. Blog posts like this are truly wretched.

  • richard40

    I only agree with some of your points. Here are my evaluations:

    Point 1. Bogus. There is no requirement for future congresses to avoid mandates, and do their mandates as taxes, because they know that Roberts will oblidgedly rewrite the non-tax mandates they pass into legal taxes, using his own bogus precedence. If he wanted congress to stop making taxes into mandates, he should have called this the mandate it was, and invalidate the law, while saying that if congress had done it right, and honestly caled it a tax, it would not have been invalidated. Instead, Roberts took an activist legislators role, and did congresses job for them, thus providing no punishment, and no deterance, to congresses and obamas fraud.

    point 2. Agree partly. Since this illegal mandate, has been turned into a legal tax, by activist judicial fiat, this tax can be overturned by 51 vote reconciliation. Of course if Roberts had done his job now, we wouldn’t have to worry about reconcilliation or repeal.

    point 3. Agree. This is the only part of the ruling that Roberts got right.

    point 4. Mostly bogus. Yes repubs can spin the act as a tax hike now, but obamas minions already have their answer. I just heard one of them on a talk show still denying it was a tax. Her spin “it is Roberts who says it is a tax, not us, and the other 4 members of the majority opinion still deny it is a tax. If roberts had conditioned his opinion that the mandate was now a tax, with a demand that the 4 leftist court members also agree it was a tax, and agree to concur with his opinion of the commerce clause limits, it might have gotten him something. As it is, he gave the leftist court members the main thing they wanted, approval of the law, and got zero in return.

    point 5. Agree. We now know that the court cannot be relied to defend us against oppressive big gov, only we can, by throwing the rascals out. If we can get one more conservative member of the court, then maybe we can rely on the court to defend liberty, but as of now, only we the people can do it.

    • Timothy Dalrymple

      Spare me the “bogus” next time and just make your arguments.

  • John Haas

    “So I think you will see the Tea Party movement revived . . .”

    Oh, they’re revived alright.

    “Mississippi Tea Party STATEMENT ON OBAMACARE RULING 6/29/2012

    “With its 5-4 ruling upholding Obamacare the US Supreme Court has joined with the Executive and Legislative branches of the federal government in abandoning the Constitution, the Rule of Law, and with that ruling abandoned the People. All of us are now simply chattel of the government to be used and ordered about as they choose. The history books will mark this date as the day our constitutional republic was killed. It will now rest with We The People to decide if it will be resurrected or left to rot in the shallow grave dug for it.

    “Where is the weeping and wailing? Where is the anger and outrage? Do the people of the country realize what has just been stolen from them? Do the people of the world recognize that the shadow of darkness is now fallen upon them as well and that there remains no defender of their feeble freedoms? The all out oppression of all people has begun.

    “Those “occupiers” now controlling the three federal branches of government have joined together in rejecting all Constitutional restraint and in doing so they have severely violated their oaths to support and defend the Constitution of the United States. Together they now stand as blatant usurpers of power and have reduced our constitutional republic, along with all of its freedoms, to nothing more than a dictatorial junta. Becoming a banana republic is next.

    “When a gang of criminals subvert legitimate government offices and seize all power to themselves without the real consent of the governed their every act and edict is of itself illegal and is outside the bounds of the Rule of Law. In such cases submission is treason. Treason against the Constitution and the valid legitimate government of the nation to which we have pledged our allegiance for years. To resist by all means that are right in the eyes of God is not rebellion or insurrection, it is patriotic resistance to invasion.

    “May all of us fall on our faces before the Heavenly Judge, repent of our sins, and humbly cry out to Him for mercy on our country. And, may godly courageous leaders rise up in His wisdom and power to lead us in displacing the criminal invaders from their seats and restore our constitutional republic.
    Roy Nicholson
    Mississippi Tea Party”

  • Robert DiStefano

    When will we stop trying to put lipstick on this pig? The very simple fact of the matter is, that this would only be creditable if we had a President , Attorney General, and Congress, who respected the “Rule of Law”, which is our Constitution! When will we finally realize, that “they” don’t care about what the People, the Constitution, or the Supreme Court for that matter, wants or believes? Roberts is no “genius” who “showed us the way by some cunning Patriotic manipulation of the law! He has totally destroyed any reliance on a “conservative majority” on the Court; that Court will now swing anyway that the wind blows! Roberts alluded to an effort, on his part, to make this patently unconstitutional legislation work! That is not, ands should never be, a consideration of that Court! He also confirmed a fact, that I have recently learned myself, and that is that he see The Court having absolutely no role in protecting The People from a rogue government that has quite obviously run amok! Hero, some want to make him a hero! Roberts is anything but that!

  • Bob Sacamento

    I agree with Point 5. Point 2 should be the case, regardless of the SCOTUS ruling, since the original bill was passed as a budget item. Point 1 actually points in the other direction: Congress can now impose all kinds of penalties on us as long as it remembers to call them taxes on certain types of behavior. Don’t want to criticize anyone’s efforts at optimism, but it was an awful ruling and the points raised here just don’t make up for the harm done. Though, I’ll admit, we ought to try to view things as accurately as possible, and that means seeing the good too, no matter how small it is.

    • Timothy Dalrymple

      Indeed, Bob.