Some Initial Thoughts

Published June 28, 2012

National Review Online

I’ve reviewed (but haven’t yet carefully studied) the Chief Justice’s opinion and the joint dissent of Justices Scalia, Kennedy, Thomas, and Alito, and have barely glanced at Justice Ginsburg’s concurring opinion (which was joined in whole by Justice Sotomayor and, except for the Medicaid part, by Justices Breyer and Kagan). (Opinions here.) So I’ll have to hold off for now on any fine-grained legal observations and instead offer these initial thoughts:

1. It’s exasperating to have come so close to a big victory, one that would have buried the abomination of Obamacare (and, in the process, have eliminated the noxious HHS mandate and its trampling of religious liberty). But I’ll volunteer up front that I’m much less exercised by the result than many other conservatives are. That’s in part because, notwithstanding my mistaken prediction yesterday, I managed to keep my expectations low.

But it’s also because, in the larger scheme of things, I’ve held the distinctly minority view that the Obamacare cases, however they would be decided, would be much less consequential than most people seem to think. In particular, I believe that if the November elections go well—and I acknowledge that’s a big “if”—Obamacare will be repealed, and all sorts of other good results, including a conservative replacement for Justice Ginsburg, will be possible. (Not certain; not easy; merely possible.) Conversely, if President Obama is re-elected, I genuinely fear that the American experiment in representative government will be headed irreversibly towards collapse, with Obamacare operating only as a modest accelerant. (I recognize that many people will deride my fear as unduly apocalyptic, but great nations rise and fall, and those who complacently assume that things will somehow continue just fine, even as we rapidly deplete our financial and moral capital, are the fantasists.)

2. As political conservatives should have learned from the Planned Parenthood v. Casey fiasco twenty years ago, getting the fifth vote in politically sensitive cases isn’t easy—not even, as inCasey, when the modest objective is to get the Court to defer to democratic enactments. In order to have reasonable assurance of getting five votes, we need to work hard to have at least seven presumptive judicial conservatives on the Court. Again, victory in November is essential for progress on that path.

3. Although it did not result in invalidation of the individual mandate, the conclusion of the Chief Justice and the joint dissenters that Congress’s Commerce Clause authority, even when combined with the Necessary and Proper Clause, did not empower Congress to impose the mandate places a clear limit on Congress’s Commerce Clause power. With the current composition of the Court, Congress might sidestep that limit by using its taxing power. But apart from the fact that the Court’s composition might change for the better, Congress in the future will have far greater difficulty denying that a financial imposition is a tax, and it will therefore face a higher political barrier in inflicting that imposition.

There were also a (to my mind) very surprising seven votes—including Breyer and Kagan—in support of the proposition that the Medicaid expansion provisions were beyond Congress’s so-called Spending Clause power.

4. The Obama administration got away with its bait-and-switch, first denying that the penalty for non-compliance with the mandate was a tax (and winning more favorable scoring from the Congressional Budget Office in the process), then salvaging the mandate-with-penalty on the ground that it could be reconceived as a tax. Any “tax,” of course, is a tax on being uninsured—not, I would suspect, a tax that will suddenly win a lot of favor among the American people. In November, it will be time to make the Obama administration pay the price for its shenanigans.

5. Today’s ruling makes it all the more imperative that the American people elect a president and Congress this November who will work together to repeal Obamacare and to enact a sound health-reform plan, one that will establish insurance protections for people with pre-existing health conditions, slow the pace of rising costs, and cover the uninsured—all without coercive mandates or unaffordable federal spending commitments.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.

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