I just got back from the Supreme Court. It was an interesting experience sitting in the Courtroom as the opinion in the Obamacare case was read. And, by now, if you’re like me, you’ve gotten37 million pre-written press releases from every elected official in Virginia and most nationally either celebrating the individual mandate’s survival, or decrying this as the darkest day in the union’s history.
The truth lies, as it usually does with Supreme Court decisions, somewhere in the middle. In my opinion, however, the bulk of the victory lays with those of us on the right.
While we may have lost the battle on the individual mandate itself, we won two arguably bigger, more long-term critical fights – the fight about the breadth of the federal government’s regulatory power under the commerce clause, and the fight about the use of the federal spending power to coerce states into doing the federal government’s bidding. Those are both huge issues for small government conservatives and we won both – even getting a large majority, 7-2, on the spending power issue.
I am not going to say I’m not disappointed that Justice Roberts didn’t join Justices Kennedy, Scalia, Alito and Thomas in striking down the entire law. I do feel that this was the second best legal result we could have hoped for and it was the absolute best political result we could have hoped for. I would tell my friends on the right that demonzing John Roberts for this decision is a bad idea and I truly hope they refrain from calling him a RINO or a liberal, or – the kiss of death nowadays – a moderate. In the long term, the good that will flow from this decision will far outweigh the immediate bad of the individual mandate’s remaining intact. Roberts took the high road, both protecting the Court from the typical judicial activism charges, yet also advancing conservative principles on the size of government considerably.
I’ll analyze both the legal and political issues in turn.
From the legal point of view, the idea that the individual mandate stands as a tax makes historical sense. Congress has been using taxation to coerce behavior for a long time now – for example, federal legislation regulating marijuana was done by taxing it, rather than outright banning it. From the mortage deduction to credits for education, Congress has long used taxation to provide incentives for behavior. While I disagree that taxation should be used this way, it’s been viewed as constitutional for a while. So while I dislike this decision, I can accept it.
Hopefully, this decision will cause some serious thought in Congress about using its taxing power in this way. It’s a bad idea and I hope that those who like using taxes to coerce behavior instead of raise revenue are punished for those beliefs at the polls.
But keep in mind, this was always the fall back position for the President and his allies in Congress who wrote the legislation. They focused their argument claiming that the regulation was valid under the commerce clause and the court emphatically rejected that argument. The court rightfully recognized that accepting it would have destroyed our notion of a limited federal government. Thus, the NFIB decision will go down as a further limiting decision, in line with Lopez, Morrison and Raich, continuing to pull Congress back from the constant overreaching that began in the New Deal era and went unabated until the mid 1990s.
The Medicaid expansion was a huge victory for small government conservatism, and it builds upon the precepts laid down in South Dakota v. Dole. This is the first time that a federal program was struck down under a spending clause theory. The federal government has constantly imposed mandates on the states, coercing states in adopting federal policy through the threat of withholding funds. This is the first time the Supreme Court has finally said the federal government has gone too far. Now, states like Virginia will be able to decide whether they want to accept federal money for a major expansion of Medicaid, eventually having to take up the burden for 10% of that expansion, or whether they want to opt out, without fear of losing all their Medicaid funding. This is a big win.
Politically, this was, in my opinion, the best possible outcome for Republicans. We won two major arguments about the size and scope of government, and the President won the boobie prize – he got his Obamacare, but he got it because he signed into law the largest tax increase in history – all while claiming over and over again that the individual mandate penalty wasn’t a tax. Now he can’t argue this wasn’t a massive tax hike because the only reason it’s constitutional is because it was a tax hike. Every Democrat who voted for the law is going to have to own the tax hiker label. In the end, this will be a quintessentially pyrrhic victory for the President. Because the law wasn’t struck down, our efforts to repeal it will continue to generate political power and the Democrats will not be able to rest on their laurels, either, because they have to replace the Medicaid expansion somehow, or explain to the folks in battleground states like Virginia why the federal government is taxing our citizens to pay for expanded Medicaid in places like California and Vermont. Even the president acknowledges this when he claimed in his speech a few minutes ago that he didn’t push for health care legislation because it was popular. That’s nonsense – of course he did. The fact that it remains political unpopular is something Democrats really can’t understand, and the likelihood that the American people are going to suddenly change their minds now is very, very low. The Democrats have made their bed on health care, and the Supreme Court has just told them they have to lie in it. This will help Republicans in the fall.
At the end of the day, this decision will be debated left and right, and many are going to disagree with me that there was anything good about it. But if you focus on the long view – on the overall long-term health of the American experiment – it was a reaffirmation of the conservative principle that the federal government and our federal system has limits. That’s a good thing, and I’m willing to accept that as a win.
Now let’s repeal the whole damn thing.