In a 5-4 decision this morning the Supreme Court upheld the constitutionality of the “Affordable Care Act”—aka Obamacare—specifying that this is only the case if the penalty for not buying insurance is understood as a tax. Obama adamantly argued in 2009 that it was not a tax, but since his Solicitor General did take up that definition as a possibility in his argument to the Supreme Court it doesn’t really matter what Obama stated previously.
This was almost a huge victory for conservatives who have been arguing for two years that the “individual mandate” far exceeded Congressional powers given by the Constitution. To the chagrin of many liberal scholars and media personalities, that is in fact what the Court declared. The enormity of that decision can only be grasped in the context of a 70+ year battle over the interpretation of the “commerce clause,” which has been used to justify pretty much anything Congress wants to do. The Court is finally drawing a line in the sand, signaling a possible reversal of that interpretation. That’s the good news.
The bad, bad news is that Congress can now seemingly do anything it wants anyway, so long as it uses a tax to get it. For a long time the power to tax has been used to encourage or discourage behavior, but the Supreme Court has now granted this practice its full blessing, enabling Congress to go wild with creative new “incentives.” The media will spin it in every possible way, but one thing is certain: we have just witnessed both the largest tax increase in American history and a massive expansion of how tax powers can justifiably be used.
After decades of debating it, the Commerce Clause just might be irrelevant.
Personally, I believe Chief Justice John Roberts (appointed by G.W. Bush) sided with the liberal wing on the mandate as part of a strategic move. Had the decision come down to a 5-4 vote to eliminate the law entirely we would have heard loud cries from the media, law scholars and the Administration about how political and partisan the Court has become. It would have given Obama an arrow in his quiver for use not only against Romney in the presidential campaign, but against the court itself, just as he did in response to the Citizens United ruling.
The Supreme Court must uphold at least an appearance of objective impartiality or the Rule of Law breaks down. By having the very conservative Chief Justice side with the left on this one, Roberts preserves the nonpolitical image of the Court while simultaneously limiting Congress’ commerce powers and protecting states from being bullied around by the Federal Government (SC struck down part of the bill that forced states into massive financial commitments).
Speaking only in terms of how powers are understood, today’s decision has narrowed the powers of Congress. But it has drawn attention to the tax power without clearly defining whether it can be used toward unlimited objectives. Thus, both sides win and lose a little.
How it will affect the presidential campaign is hard to tell. The law remains unpopular, but this ruling gives it some credibility in the public eye. Obama can say his signature achievement was the right thing to do and that Republicans have just been trying to get in the way. Romney, on the other hand, can say it was the wrong law at the wrong time and that the Democrats share a vision of America where unlimited taxes and regulations are imposed at the most personal level to force you into things you do not want—that is not the America that our forefathers and immigrant grandparents dreamed of.
Analysis of the Court’s opinion will carry on over the next couple of days to distill some of its subtleties. Stay tuned.