We probably shouldn't have gotten our hopes up so high. A legislative disaster is probably better undone legislatively; we shouldn't count on the Supreme Court saving us from the nation's bad judgment.
Once America elected Obama president with large Democratic majorities in the House and Senate, something akin to Obamacare was more or less a done deal. By the time the country started objecting, it was too late. Not even Scott Brown's victory was sufficient to deter them; the Obama White House and congressional Democrats were on a mission. Remember Pelosi's Suicide Squad? They knew they were risking the House, and perhaps even the Senate, by passing this. They did it anyway.
Fear of the wrath of the electorate is supposed to be one of the things preventing Congress from passing really terrible ideas into law. The notion of a majority of the nation's lawmakers essentially not caring what the electorate thinks -- passing a bill with a gleeful "to heck with what you think, voters" -- is kind of a new problem for American democracy. Traditionally, an American president is a little more concerned about keeping his party in the majority in the legislature, or traditionally a president is less certain that his party's odds in the midterm aren't a concern because, as he told Arkansas Democrat Marion Berry, "you've got me." (Berry was so reassured by this presidential pep talk that he promptly announced he would not be running for reelection.)
Charles Krauthammer tries to mind-meld with Roberts:
How to reconcile the two imperatives -- one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds -- interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan Court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court's reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That's not how I would have ruled. I think the "mandate is merely a tax" argument is a dodge, and a flimsy one at that. (The "tax" is obviously punitive, regulatory, and intended to compel.) Perhaps that's not how Roberts would have ruled had he been just an associate justice, and not the chief. But that's how he did rule.
Obamacare is now essentially upheld. There's only one way it can be overturned. The same way it was passed -- elect a new president and a new Congress. That's undoubtedly what Roberts is saying: Your job, not mine. I won't make it easy for you.
You don't often see me quoting Ezra Klein here, but his assessment, and that of Georgetown law professor Randy Barnett are pretty interesting:
"We won," said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. "All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It's just weird."
By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He's made himself bulletproof against insinuations that he's animated by party allegiances.
But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court - namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government's power to regulate interstate commerce, today's decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding.
"For those of us who oppose the Affordable Care Act as a policy matter, this is a bad day," Barnett said. "For those of us in this fight to preserve the limits of constitutional government, this is not a bad day."
As for living under Obamacare until at least January 2013 . . . a young teenage reader wrote in, saying how much he liked Obamacare and how wrong it was for National Review to "bash" the president so "disrespectfully." His tone was polite and earnest, and so I wrote him a response, and I thought a portion of it was worth repeating here:
As for the qualities of Obamacare, which you're so enthusiastic about . . . well, you're already seeing unintended consequences of the law, like colleges dropping student health-insurance plans . . .
. . . and premiums going up . . .
. . . doctors think the law is going to hurt the quality of care, and this 2012 survey indicates that 45 percent of doctors are contemplating retirement in the next five years . . .
. . . the deficit is likely to worsen considerably . . .
One of the reasons I'm drawn to conservatism is the recognition that almost every government action has unintended, unforeseen consequences, and they're very often bad ones. Thus, big, sweeping, dramatic changes are often likely to create all kinds of new problems, which may surpass the problems the original sweeping dramatic change aimed to solve. Lawmakers are very rarely as wise and farsighted as they think they are, and the folks who enact the laws -- noble public servants in some minds, arrogant, uncaring bureaucrats in others -- are destined to make mistakes.
Everyone needs health care, but the problem with defining it as a right, akin to the right to free speech, right to freely assemble, right to worship, etc. is that it costs money. The wonderful advances of modern medicine save lives, prolong lives, improve the quality of lives, but those drugs, MRIs, surgical lasers, etc. don't pay for themselves. Resolving that basic challenge -- how to provide as much quality care for as many people as possible and coming up with the best way to pay for it -- is never going to have a simple solution, and I would rather have fifty states experimenting to see what works best than one sweeping solution designed to work for everyone in a country of 300+ million people. One fascinating example is Lasik surgery, not covered by most health care plans. Because people pay out of their own pockets, they shop around for the best deal. As a result, competition among Lasik and eye surgeons has made the cost of that procedure much cheaper than other surgical procedures, with little or no discernible drop in quality.
Another point, from Allahpundit: "Says Amanda Carpenter, "If Obamacare was presented as a tax, it would have never passed." Certainly true; the White House itself was careful to dismiss that argument in its talking points on O-Care in order to make Blue Dog Dems more comfortable with the bill. And yet here we are. By the numbers: 26 million people, 70-75 percent of whom make less than $200,000 a year, are now on the hook for a fat new "tax" thanks to a guy who swore he'd avoid new taxes on the middle class. Be sure to tell an undecided centrist friend before November."
One final point from one of my old bosses, Ira Stoll: "Though the ruling was in some sense a vindication for Obama on the constitutionality of the law, in other ways it was a pretty emphatic rejection of the constitutional acumen of a president who is, after all, a former professor of constitutional law. Even Elana Kagan, President Obama's own appointee to the court and his former solicitor general, and Justice Breyer, a former aide to Senator Edward Kennedy, agreed that the Medicaid expansion part of the law was unconstitutional. In other words, one doesn't have to be a right-wing extremist libertarian Federalist Society member to find the ObamaCare law at least partly unconstitutional. And a majority of the justices, while finding the mandate constitutional under the taxing power, also rejected President Obama's claim that the mandate was constitutional under the Commerce Clause."
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