Thursday, June 28, 2012

Whew, This 5-4 Decision is Good

Liberals have spent a month or so really complaining (tip to Instapundit) that a 5-4 decision against ObamaCare would have been the sign of a right-wing coup against rule of law. So let's all heave a sigh of relief that this 5-4 vote upholding ObamaCare demonstrates a fine respect for rule of law:

The U.S. Supreme Court on Thursday upheld the centerpiece of President Barack Obama's signature healthcare overhaul law requiring that most Americans get insurance by 2014 or pay a financial penalty, a historic ruling that gave the White House a big win ahead of Obama's re-election bid in November.

So I suppose I should give my initial response to the act since I've complained about it. I'm no lawyer, so feel free to disregard my opinion. (As if you needed my invitation to do that!)

One, I won't declare the U. S. Supreme Court illegitimate because it upheld the law.

Two, I draw great comfort from the fact that ObamaCare was upheld not on the ability of Congress to compel a person to do something under the Commerce Clause, but was upheld on Congress' taxing power. That prevents this from being a direct slippery slope to giving Congress the power to tell us to do anything. I think this is very important because Obama's lawyers were unable to draw a line between compelling the purchase of health insurance and other more obvious wrongs (like making us buy broccoli).

Three, while it would have been nice, it shouldn't be necessary to rely on a single court vote to save us from either unconstitutional provisions or simply bad law enacted through bad process and bad political deals.

Four, I suspect some of the public opposition to the law will decline because it has been held constitutional by the court. Republicans will need to make the case for repealing the bad law rather than railing against the unconstitutional law.

Five, with his refusal to apply immigration laws to a class of illegal immigrants, President Obama has set the precedent that a future president can refuse to prosecute refusals to buy health insurance.

Six, a future president could issue waivers for complying with ObamaCare provisions to everyone and not just to President Obama's supporters the way President Obama has already issued waivers.

Seven, at least we have some clarity that a tax is a tax even if you try to call it something else. Pouring hope and change over a tax doesn't make it less of a tax.

Eight, this is a political victory for President Obama. Period. You can say that Republicans have an issue, but there is no way that President Obama would have chosen to deny Republicans this issue at the price of the centerpiece of his first term being thrown out.

The world did not end. Our government did not endure a figurative coup over this decision. And we have a lot of work to do.

So there you go. For what it is worth. I now resume my regular defense blogging.

UPDATE: And thanks to Mad Minerva for the link on my totally unlawyerly take on the case (although I did work for two decades in the legislative arena, I'll at least say).

UPDATE: More on the importance of the Commerce Clause limitation (tip to Instapundit).

I will say that I am extremely annoyed that many are saying the decision "saved" the court by avoiding another 5-4 conservative decision on an important case. This is the liberal interpretation, of course. But nobody has explained to me why the 5 conservative justices voting one way is political while the 4 liberal justices voting the other way isn't political. That's just part of the liberal mind set that says their view is "normal" and conservative views are strange.

Yet the "strange" view that the Commerce Clause should have limits has been upheld.

There also seems to be the assumption that people will be angered and energized by the decision to oppose the Democrats on the fall to overturn ObamaCare. I hope so. But my hunch is that this assumption is based on the fervor of those who pay attention to politics applies to everyone. My guess is still that the controversey over the court fight led many to oppose the act, but that now that it has the highest court's stamp of approval, opposition will decline in polling unless the opposition to the act make the case anew against ObamaCare rather than assume that anger over the court decision will propel them across the finish line in November.

UPDATE: OK, let this be my last update. Why I'm not upset about the decision, even though I'm disappointed that the law was not struck down:

If you were above all interested in the bill being struck down, it was mostly a loss. On the other hand, if you were more concerned about the qualitative expansion in the power of the government that the bill represented, it was definitely a win.

Unless we are just getting a Commerce Clause in Taxation's clothing, of course.

And let me add that the chaos of a law upheld while only the individual mandate was struck down could have been worse. Would Democrats have repealed the remainder of what they passed with such difficult in order to start over if they had any power to stop repeal? Or would they hold America hostage by implementing the law as much as possible until the pain of the act compelled the majority to "fix" ObamaCare?

I would like to note that after the left bitterly complained that the court would issue a political rather than a legal decision, the majority may have relied on a political decision by Roberts to call the individual mandate penalty a tax in order to avoid a left-inspired hysteria over the "legitimacy" of the high court had he ruled on the law based on what Congress and the Preaident called that money grab.

UPDATE: OK, let me at least link to Mark Steyn. I confess that I won't say I'm confident that the Commerce Clause has taken a decisive hit to prevent it from being the universal justification for whatever Congress wants. And while at some level I am happy that the ruling at least says that a tax is a tax even if Congress tries to call it something else, I'm not confident they got it right with this penalty/tax. And while I certainly always followed the rule in college that if you can't answer the question asked, rephrase the question to one you can answer, I'm not happy that the high court appeared to do exactly that by calling the ObamaCare penalty a tax.

I'm not happy with the decision. I have hope it will work out in the long run. But it worries me, too.

UPDATE: OK, one more. Via Instapundit, the White House denies that the ObamaCare tax is a tax even though that is the only way it is constitutional.

I'll say it again: our federal government is just too damn big and it makes criminals of everyone. God gave us only 10 crimes to remember. Our federal government issues that many commandments every hour.

Stop thinking we can put better people in charge. Reduce the scope of their control and it won't matter.