1) The Commerce Clause does have limitations. Even though Roberts conceded that the mandate can still be mandated by Congress' taxing power (yes, I know that it was never defended as a tax and yes, this screams of judicial activism since the court invented a way for it to be implemented rather than rely on how the law was written), Roberts concurred with the dissenters that the commerce clause cannot be used as the justification for any government intrusion into the private sector. Of course, all this does is give Congress the hint that if they do want to regulate anything, just make it a tax instead. But considering that taxes now, especially in this state of the economy, are a non-starter, I don't think I will see Congress in the future mandating a broccoli tax on people who don't purchase and eat broccoli.
2) The base is energized. Republicans were always lukewarm on Romney. Now, they're all in behind him. Forget the divisive Republican primary--it's history. Romney has promised repeal. Every single Congressional and Senate candidate who wants to save his job come November had better come out in favor of repeal or at least consider it. People do not like this bill. Most people couldn't care less if the mandate is enforced via the commerce clause or the taxation authority of Congress. They don't want to purchase something they may not need.
3) There is a revival of interest in the Constitution and what it actually says. Can anyone remember the last time the Constitution was talked about by non politicians and non constitutional lawyers at any time prior to an election? I can't. Who has ever recalled the commerce clause or the general welfare clause or the elasticity clause being talked about at dinner conversations or by people sharing a beer at a baseball game? Obamacare has been an impetus for learning about what it is in the Constitution. Granted, many people are being duped by liberals who actually think the Constitution only means what it says in certain parts when it agrees with their utopian vision, but at least that's a base to work from.
4) Roberts is not quite the boogeyman in all of this. It's easy (and fun) to hate Roberts for his role in all of this, but consider these: First, he essentially told the Republicans what to run on and gave them a winning issue. He said that it isn't for the court to decide what's good policy and what's not. We've made our decision. Grow a pair and get out to repeal it yourselves instead of trusting us with that job. Poll after poll reveals that Obamacare is unpopular and that 2/3 want it repealed in full or in part.
Secondly, Roberts did trumpet originalism. Though his ruling seems to be a far cry from originalism, notice how he dresses down Ginsburg who is one of those justices who feels the Constitution means only what she wants it to mean at any given time. In this case (footnote 4), Roberts is addressing Ginsburg's ridiculous contention that regulation pertains to activity and inactivity. Here's more:
JUSTICE GINSBURG suggests that “at the time the Constitution was framed, to ‘regulate’ meant, among other things, to require action.” But to reach this conclusion, the case cited by JUSTICE GINSBURG relied on a dictionary in which “[t]o order; to command” was the fifth-alternative definition of “to direct,” which was itself the second-alternative definition of “to regulate.” It is unlikely that the Framers had such an obscure meaning in mind when they used the word “regulate.” Far more commonly, “[t]o regulate” meant “[t]o adjust by rule or method,” which presupposes something to adjust. [Citations omitted.]I think that's a triumph (a small one, granted) for originalism.
5) Though not explicitly stated, the 10th amendment was upheld. States cannot be forced, i.e. blackmailed or extorted, into expanding Medicaid at the risk of the funding that currently exists. It was interesting to hear Sen. Ben Nelson claim credit for that (remember the famous Cornhusker kickback?) although his kickback was not in the final bill. Nelson must think that SCOTUS was looking to him and his opposition as the source for their ruling. What a tool!
6) Obamacare is an economic disaster. The math speaks for itself. Once it goes into full effect, we will see the results immediately. We are currently in the throes of the spending debate in Washington. The American people do not want more spending, especially since there is no supply to fund it. Even on its most generous scoring, the CBO says that Obamacare will add billions, if not trillions to the already out of control debt.
On the private side of things, medical device companies are going to be hard hit with new taxes. Guess who ultimately pays that price? The people who purchase them. Whenever the government increases the cost of doing business, the business has to recoup the costs from somewhere. And when those businesses can't, they go out of business. Fewer businesses, fewer jobs, less of a tax base. Of course, liberals can't see that in their warped view.
There you go: My six silver linings. Let Obamacare go into effect. Maybe, just maybe, it will serve as the impetus to return us to some sense of fiscal sanity.
I have a friend who had a massive stroke some months ago. His health care company (Humana) is cutting off payments for his physical therapy, speech theraqpy, and occupational therapy. All this is the sort of stuff that wasn't supposed to happen under Obamacare, isn't it?
ReplyDeleteWell, turns out his actual health care policy indeed cannot be discontinued - but it doesn't include long-term care. You have to pay extra to purchase that.