While we are disappointed in the ruling, as I discussed on Tammy Radio, declaring ObamaCare a tax opens up many new avenues with which to kill it. It also is a gift to Romney for campaign rhetoric, and will help him further define his campaign. Now, consider the other dynamic at play here–the nature of the Commerce Clause. This is one of many piece if good news from this decision which I hope will help you channel your current anger into impackful organizing for a Romney victory and conservatives taking the whole of Congress. From Slate.

Obama Wins the Battle, Roberts Wins the War
The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered.

Yes, Roberts voted to uphold the individual mandate, joining the court’s liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause…

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well). Here’s the Chief Justice’s opinion (italics in original):

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

Maynard appends a personal testimony:

For the record, here’s the graph of the previous 80 months of my personal health insurance premium. This is a high-deductible (and thus a relatively low-cost) plan from Anthem; it protects me against disasters but leaves me to pay ordinary expenses out of my pocket. The blue arrow indicates the passage of the “The Patient Protection and Affordable Care Act”. Subsequent to that law, my premiums have jumped by 60% over a 2-year period (from $164 to $261). Contrast this to the first 2 years on my chart, with an increase from $139 to $159, or about 14%. With every increase after Obamacare passed, I’ve received a letter from Anthem citing the expenses involved in meeting the requirements of Obamare. I’m posting this here because I think my experience is typical. This is why employers are dropping coverage, and those of us who aren’t getting paid for by Uncle Sugar are scrambling. In a sane world, the real-world impact of this “Affordable Care Act” would be a major news story, and not a FoxNews exclusive, with some help from the blogosphere. Anyone still supporting Obamacare simply doesn’t understand what’s being done to us.

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28 Comments | Leave a comment
  1. IloiloKano says:

    Anybody got a link to news coverage of rampaging Tea Partiers that Patrick Kennedy warned about?

  2. AD1776 says:

    Excellent analysis –as always.

  3. chris1058 says:

    This is all making my head hurt…. thank GOD I am on vacation next week.
    So maybe… MAYBE… if Romney now has hinged his election on repealing ObamaTax and the economy STUPID, the MSM will believe the voters poll of 55-70 million YEAYs to 30-40 million NAYs when we kick the db to the curb?
    I doubt it.
    I’ll be back just in time for Tammy to go on vacation!

  4. otlset says:

    Well, seeing it from this angle makes me feel much better. We’ll see, maybe Roberts is more canny than I thought here.

  5. plaisir says:

    Ya know, I always had a squirrelly feeling about Roberts, especially when the subject of recusal came up. He admonished the dirty masses with “enough talk about recusals.” Hmm. You can sure tell a Harvard man, or woman, but ya can’t tell ’em much. HT Howie Carr, Boston radio. I fear we have Souter-Warren redux.

  6. makeshifty says:

    Perhaps this is a long-term victory, but I don’t see it now. The fact of the matter is the SC has given its permission to tax on factors that have to do with commerce, but have little to do with income, or where it’s derived. They have expanded the government’s power to tax and regulate, not shrunk it. They have given congress permission to use the power to tax as a regulatory tool, to influence people’s behavior. The government is keen on the fact that it most certainly does already. Look at how many people buy houses, or make investment decisions based on how it will affect their taxes. The notion that “The government cannot compel a person into commerce” seems meaningless in this context. Yes, that’s the reason the Democrats took out the penalty provision in the law, and just raised the tax rate on people who don’t comply. This bit in the decision is a fig leaf to conservatives. It does not have any force behind it. Did Roberts not get that the power to tax in this context carries with it the power to compel? Yes, the carve-out in the tax rate for those who don’t comply with the policy is small right now, but it can always be increased. We saw this with the income tax. When it was first instituted, the top rate was 7%. It was eventually raised to 95% during WW II, and stayed there into the 1960s, before gradual decreases were brought in place, until it reached the rate it’s at today, at around 35%. Keep in mind that’s 5x where it started! The same can be done with this tax rate carve-out. It’s small now, but can, and *WILL* get bigger–by necessity–as this law does not solve the problem of rising health care costs.

    To me, the SC has made a distinction without a difference. I don’t see how this decision helps curtail government intrusion in the future. What it says is the government cannot under law order anyone into commerce, but it retains the power to make your life a living hell if you don’t comply with government policy. Thanks, guys.

  7. strider says:

    The linkage to taxation might be good. Taxes are at the root of many problems and should be addressed soon. In addition to reducing the nation’s wealth they give government power over it’s citizens it should not have.

  8. sandyl says:

    Question: Couldn’t he have gutted the Commerce Clause by striking the entire bill down under that same argument? Maybe I’m not smart enough to figure this one out. Right now, I’m just really tired of being punched in the face.

  9. mrcannon says:

    Liberals owe Roberts an apology, when you consider the vicious slander they spewed at him when he was first nominated. Clearly he’s been one of them, all this time. I see no silver lining when twice in one week, the Supreme Court signs off on an Obama dictatorship.

  10. Pat_S says:

    I think Roberts did not want such a major piece of legislation to go down based on a 5-4 court ruling. It is actually a principled conservative view of the court. Unfortunately to accomplish his goal Roberts had to go through some convoluted mental gymnastics. The reasoning as outlined in the decision is embarrassingly poor. What’s more, this shining example of judicial restraint will not influence future liberal activist courts one bit.

    He opens his hand to show us a penalty. He puts his hand behind his back and then, abracadabra, the hand reemerges holding a tax. Not just a normal tax. It is a tax on not doing what the government wants you to do, something Roberts says the government cannot tell you to do. It reminds me of the paradox, “The next statement is true” follwed by, “The previous statement is false”.

    Maybe Roberts is a genius. Time will tell. The Commerce Clause has a plug in one hole although there are plenty left to sink us. But now Congress can tax us for not doing something. They’ll love that since they’ve taxed us for just about everything we can do.

    I wish Roberts would stick to the merits of the case before him and not have too sweeping a vision about the legacy of his court or worry about nasty things that might be said by liberals.

    • sandyl says:

      Exactly Pat. His only job is to uphold the constitution NOT rewrite the law or worry about how the court looks to liberals. The very reason the Supremes are not elected is to avoid political outcomes vs judicial ones. This was political and it stinks especially when they said it wasn’t a tax when the tax injunction argument was decided first. Now it is a tax? Your paradox statement nails it.

    • angelaisms says:

      I’m with Pat on this one. Maybe Roberts was playing eleven-dimensional chess, and maybe, with time, he’ll come out looking like a hero. But for now, he looks like a crapweasel who got his feewings hurt when POTUS scolded him and so wants to be sure that everyone knows that he’s Fair and Bipartisan. If Kennedy had swung left on this it would be another story, but he didn’t.

      Will this ruling be a blessing in disguise for us Tea Party types? Likely so — it could easily (and probably will) have the same stimulative and galvanizing effect on small-government types as Obama’s election/presidency did, and rally more people to our side of the argument. But just like with Obama’s election or that abusive boyfriend I once had, I can be grateful for the lessons learned without being remotely happy with the decisions and events that led to those lessons.

    • Chuck says:

      That’s exactly my view. There is no need to gut the commerce clause by “accepting” the mandate as a tax. In accepting the mandate as a tax, the court has now defined a new kind of tax not enumerated by the constitution. The gutting of the commerce clause is done by gutting the law, plain and simple. Robert’s arguments did not make any sense.

  11. Charles_TX says:

    The fact that Slate, a liberal e-rag, is now praising Roberts doesn’t do anything to make SCOTUS’ decisions this week any more palatable. The ACA is a pig in lipstick, SCOTUS is merely saying that Red, Brown, and Black might not be the best colors for the pig to wear in America. (Purple would be fine though.) The Arizona decision will be used to collect all power to DC and erase our national sovereignty.

    Expect all future Congressional edicts to contain a tax component to make them “constitutional”. The political class will readily adapt to the new environment, much like a virus. The added benefit for them, a greater number of taxpayer funded “profit centers” will simply cement everything in place. Remember that taxes are also permanent – it took almost 100 years to remove the temporary phone tax that was imposed to pay for the Spanish-American War.

    While I’m not ready to yell “Game Over!”, I must admit that I’m feeling a bit discouraged at the moment. The ray of hope is that there are still hundreds of millions of normal Americans whose collective intelligence exceeds that of the Washington insiders by many orders of magnitude. We will ultimately work our way out of this mess, but it will now be more painful than was absolutely necessary.

  12. Alain41 says:

    It’s good that the decision is not based on the Commerce Clause, in fact, rejects that it could be. But it is not a rollback of Congress’ power as Slate says, it is just a somewhat high hurdle against an expansion of Congress’ power.

    Interesting that Slate uses the phrase, “Congress’ regulatory powers” because there is no such thing separate from law making. Congress makes laws because the Constitution says they can. Congress can delegate authority/responsibility to gov’t regulatory agencies, but the regulations must be based in law. Constitution also contains the Commerce Clause which is not a Congress can regulate anything clause. So it seems that Slate is peeved because SCOTUS decision was based, in part, on the Constitution grants the government specific authority such as to tax and not the government has all authority except that specifically denied by the Constitution.

    • sandyl says:

      What is so frustrating is that the entire bill would have been flushed today if it weren’t for Roberts pulling out a convoluted tax argument that saved it. I am so angry, frustrated, and tired I could scream. I keep hoping that we will all wake up from this nightmare but it just continues.

  13. Maynard says:

    FWIW, a wiki article on a list of people with epilepsy. It includes a number of luminaries, both positive and negative.

    With respect to the spontaneous money bomb that went to Romney in the wake of the Obamacare decision (by the way, I jumped in too!)…my first assumption would be this is a grassroots thing; a huge burst of small donations. I’d be interested in knowing to what extent that’s actually the case.

  14. makeshifty says:

    I agree with Pat_S’s assessment, that Roberts didn’t want to be responsible for striking down such a large law, and I agree that this is principally conservative in the sense that he remained focused on the arguments against the law, not passing judgment on the entire law, which in his judgment was not challenged in its entirety, just in a couple aspects. This suggests that this law can and will be revisited many times in the future on other grounds. What bothers me about his decision is Roberts doesn’t seem to see the implications of what he just did. To accomplish his goal, he created a new taxing authority out of whole cloth. This is what I said here on this blog about a year ago: The problem with it is that it allows the government to use its taxing authority for a dual purpose, 1) to raise revenue, and 2) to “nudge” people in a regulatory fashion to do something the government wants us to do. I talked about how it could potentially cut into class issues, religious issues, etc. (though I didn’t anticipate the gov’t pushing into church doctrine with the birth control coverage issue). It already does this in financial matters, offering tax cuts to certain favored groups, but this gets more intrusive in that now it can base policy on what was previously a private transaction. I’ve let liberals know that they may live to regret this, because just you wait until social conservatives gain power in the future, and decide to try to push through the same sort of thing on abortions. “You want to get an abortion? We won’t prevent you from getting one, but we’ll raise your tax rate if you do it. How do you like them apples?” The implications of this should send shivers down everyone’s spines. But no, liberal reactionaries are celebrating. Ignorance is bliss.

    • Maynard says:

      I believe in principle that our freedoms slip away one by one when we live under a government that can use taxing authority to micromanage our lives by herding us in this direction or that. Taxes should be applied for the purpose of raising essential revenue, not to coerce us into an approved lifestyle and make approved decisions.

      However, in saying that, I acknowledge that the perfect ideal of non-manipulative taxes cannot be achieved, in that just about every tax will influence behavior in one way or another. For example, in the younger days of the republic, the primary tax was the tariff. This, of course, tended to discourage imports and push buyers towards domestic producers.

      On the other hand, at least the tariff was applied exactly as set down in the Constitution. The current tax system has pretty much grown like a cancer, becoming more and more manipulative and enabling.

      Yes, as you say, the liberals don’t seem to appreciate that what goes around comes around. This is what makes me crazy. The very same people who thought George Bush was an evil moron suddenly want to give all power to the government, just because they worship the current president. But when the pendulum shifts and they regard the next guy as another evil moron, then they’ll suddenly regret that they’ve given that guy charge of their most personal life choices. That’s why I argue that we can all coexist under a more minimal government, which is inherently a tolerant thing in that it doesn’t have the power to squash you like a bug. Modern liberalism is driven by the dark forces of the psyche that need to dominate the other guy. My challenge to liberals is to remember the Golden Rule. How’d you like to have the other guy do to you what you’re doing to him?

  15. […] Tammy Bruce:  This==> Obama Wins the Battle, Roberts Wins the War By Gutting Commerce Clause […]

  16. AlThumbs says:

    Now ‘We The People’ need to get out the vote and be at the polls..! God has got to be in this somewhere. I can’t see myself gladly living under the government’s thumb.

  17. paul14 says:

    It’s not Roberts job to re-write the bill! This was not our “poor decision”! We were, & are against this. We just needed to know if this is constitutional or not!
    Now we can be taxed for whatever “they” feel like taxing us for. Even for what we don’t do!

    • sandyl says:

      Yes, I can see it all now. Don’t drive a hybrid-tax; don’t recycle-tax; don’t keep your house at 80 degrees-tax; don’t eat broccoli or peas-tax; don’t vote right-tax; etc.

  18. handsofmajic says:

    Darn. I did not get to purchase my bottle of Grand Marnier and Arturo Fuente cigar since Obama care was not overturned by the Supreme Court. Disappointed, Yes. But we should not expect 12 people to fix the mess the people we “ELECTED” to office made. So today “I””me””myself” am doing my part in replacing politicians who have created this horrible legislation. So in stead of having a little personal celebration I took the money I was going to use to buy my Grand Marnier and Arturo Fuente including taxes, and gave it to Mitt Romney. OHGOD! I can NOT believe I donated to Mittins!!!

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