Unless you live under a rock, you’ve heard that the Supreme Court upheld the Affordable Car Act (aka Obamacare) 5-4.
Like many conservatives who have followed this case, my initial reaction was unprintable, and as some wags have suggested, we all owe Harriet Miers an apology.
In his press conference on the ruling, Virginia’s Attorney General Ken Cuccinelli began by saying “our side mostly lost.”
But he also pointed out that there were a couple of key wins for liberty in the majority opinion from Chief Justice John Roberts. For first time in 85 years, Cuccinelli said, the Supreme Court has defined an outer limit to federal power under the Commerce Clause. The federal government cannot compel people to engage in commerce, which was a central thesis of Virginia’s challenge to the law. Cuccinelli called this holding a critically important containment of federal power.
Another bright spot: for first time in 85 years, the Court also placed restrictions on the government’s spending power. No longer can Congress threaten to withhold all funding if a state refuses to adopt an expanded federal program.
But those victories were, of course, overshadowed by the Court’s holding that the penalty for not buying health insurance was the constitutional equivalent of a tax.
This has lead some to say that the feds could require everyone who doesn’t buy, say, a Chevy Volt, pay a tax penalty for refusing to do so. That’s probably true. However, as Cuccinelli noted, in the future, no president or congressman will be able to put forward a bill that raises revenue without calling it exactly what it is: a tax. Some of us in Virginia have long said the same thing about fee hikes — they are taxes, plain and simple. And according to the Supreme Court, no fudging or dodging on that point will be allowed (at least at the federal level).
Chalk that up as a victory for clarity.
Cuccinelli also said that because many politicians are loath to raise taxes out of fear of their voters, it may be more difficult in the future for any politician to seek “revenue enhancement” measures because they must be called that very simple word: tax.
Cuccinelli thinks it might usher in a new era of accountability. I think it guarantees Grover Norquist’s job.
The AG touched on the issue of state insurance exchanges. He said Virginia is now looking at creating an exchange, but a key consideration is what happens to businesses should the state not create an exchange. Will they be subject to the tax penalty? It’s something they are going to look at in conjunction with the governor’s office in the weeks ahead.
But I come back to Cuccinelli’s opening statement: “our side mostly lost.” In court, undoubtedly. But now this becomes, again, a question of politics and political will.
I’m a bit of a downer here in that I have almost no faith in the existing political class to rally itself to repeal this law, let alone replace with something that doesn’t make a further hash of free markets and common sense.
But Republicans, in particular, have nowhere to hide no on this issue. They either get busy on repeal, or they consider life after Congress. Fortunately, they have Democrats as opponents, including such long-time Obamacare cheerleader and Virginia Senate candidate, Tim Kaine.
Almost before the ink was dry on the Supreme Court ruling, Kaine sent out a fundraising email titled “Good News.” It says in part:
The Supreme Court just upheld the individual mandate and the Affordable Care Act.
It’s good news. We must continue to stand together and use the momentum from this ruling to get started on the work that remains to be done.
Not only do we need to continue to make improvements to the law and work together to find ways to reduce our health care costs, we also need to fight back against a massive effort by George Allen and right-wing special interest groups who want to roll back the progress we’ve made.
Today, my opponent said he wants to be the deciding vote to repeal this health care law. I want to be a vote to make it better.
They want us to go back to the days when insurance companies could refuse coverage when people get sick — back to the days when they could discriminate against you for having a pre-existing condition. If they get their way, young people will be kicked off of their parents’ plans, and health insurance premiums will rise for countless families across the country.
So yes, Virginia, the individual mandate is a good thing made even better because it’s really a tax increase.
And Mr. Kaine seeks to do even more, if only we’ll pony-up for his campaign.
Time to go bury the silver again…
My view from inside the Court room – more good than bad in the Obamacare decision