Sunday, July 1, 2012

No, Virginia, It Wasn't The Commerce Clause

So in a move that surprised almost everyone, the Supreme Court of the United States upheld Obamacare, not because of the swing Justice Kennedy voting to uphold the power of the Commerce Clause, but because Chief Justice Roberts decided Congress actually meant the individual mandate was a tax, and that the Congress has the power to levy such a tax, that is to say a tax on inactivity.

Were that not mind boggling enough, in a stunning display of Fridge Logic, conservatives took to their various media outlets to theorize that this incredible defeat was actually a secret win, created by the genius of a Chief Justice looking beyond the immediacy of the current political climate.

What is this theory?  Well, to put it simply, they believe Chief Justice Roberts has managed to simultaneously gut the Commerce Clause powers, hand Mitt Romney an election booster shot, and insulate his Court against the backlash that its decisions are merely partisan in nature.  The Chief Justice, looking ahead to the future, thus escapes the partisan fight over Obamacare and forces that back upon the people, who are expected to turn out in droves to get rid of it come November.  Meanwhile, he gets to take an axe to the idea that the Commerce Clause allows Congress to do whatever it wants.

Seems like a reasonable, well thought out analysis.  It certainly would provide considerable comfort to those shell shocked by the decision.  Unfortunately, it's entirely bunk.  It is a delusional fantasy written by people desperately seeking to explain and deny the horror they have just witnessed, in the same way that conspiracies form to rationalize the magnitude of events such as 9/11 and Presidential assassinations.

Had Chief Justice Roberts ruled with the dissenting Justices, the Commerce Clause would've gone down anyway, so that point is entirely moot.  The only way in which his opinion (which may or may not even be considered in the future) suceeds in that vein is if upholding the Commerce Clause had won the day and the Chief Justice sought to mitigate the damage.  But that was not the case.

More importantly, even if he had a victory on the Commerce Clause, the Chief Justice wiped it out by handing the Congress an entirely new set of powers.  As of his ruling, the Congress can now tax inactivity and not even call it a tax, thereby eliminating the stigma of having to pass a giant new tax in order to use the power, which is precisely what happened with Obamacare in the first place.  The Democrats insisted over and over again this was not a tax. They specifically crafted it to work like a mandate and a penalty, not a tax, to avoid that very stigma as well as the appearance that they were instituting "government run" health care. 

Further, this actually gives Congress a whole new way to tax actual activity, as they can simply tax the thing you didn't choose to do.  Say Congress jumps on board with Bloomberg's war on soda. Why bother risking the ire of the public by passing a bill that taxes soda when you can quietly pass one that penalizes not drinking water? Now they'll ask you, "Did you choose the 16 oz soda or the 16 oz water?  You chose soda? Well, I'm sorry, but if you don't choose the 16 oz water you have to pay the"

Thus we are left with the short term political gain for Mitt Romney/The GOP, and the Court's current reputation, neither of which involve long-term thinking or three dimensional chess.  Whether or not Mitt Romney is elected and Obamacare is repealed, the Congress will still have the new tax power, and like all other Congresses before it, it will be tempted to use it.  It's only a matter of time (maybe even under Romney himself) before they do.

Further, the Court's reputation not only does not matter in the scheme of things, but if the Chief Justice thinks that ruling in a way that pleases liberals will insulate his Court against cries of partisanship in the future, he's dreaming.  Just look at the words like "betrayer" and "coward" being tossed at him by conservatives who, up until this ruling, were in his...court (sorry, pun intended.)  Does he think the next time he rules in favor of limiting Congressional power and against liberals they're going to just say "well that's ok, he's not a partisan"?

And who cares if the Court is perceived as "partisan" or involving itself in a "partisan" fight?  It will always be perceived that way, and it's not its job to care what stupid political games are being played.  Its job is to answer the fundamental questions put before it.  Is this legislation Constitutional?  Is the power it asserts within the scope of the body asserting it?

In this case, the fundamental question before the Court was "Can the Federal Government force me, as a private citizen, on pain of a financial penalty, to enter into a contract with a private company, to pay for a service I may not want or need, because of my continued existence as a citizen of the United States?"  The Chief Justice's ruling is "Yes, they can."  And he has to go the full Whoopi Goldberg to justify it, since he had to decide the mandate is a tax, but not a tax-tax.  If it were a tax-tax, he'd have had to punt the decision under the Anti-Injunction Act that requires someone actually be taxed before they complain.

There is no silver lining to that. That is phenomenal cosmic power in our itty bitty living space. Does it require the kind of "Liberty died! The Republic is over!" hyperbole going around? No, but the only way you can begin to call it a conservative victory is if you are only concerned about the next election, and are drinking the Kool-Aid that flipping the lever of power from D to R will fundamentally re-transform the Republic into something more like a Republic and less like a "Congress does whatever the hell it wants"-ic.

Meanwhile, unlike the conservatives who desperately wrap themselves in "Fire don't melt steel!" level delusions to protect their fragile psyches, liberals are thrilled because their side "won."  Except what they won was Congress having the authority to do something they'll really hate, like say, tax anyone who does not own a cell phone and subscribe to a GPS tracking service for said phone that reports their position and all their personal information to the authorities 24 hours a day.   Or perhaps as Ed Morrisey suggest at HotAir, taxing anyone who doesn't own a gun.  After all, it would be in the interests of national security to do so.

I'm sure there are tons of lawyers and legal scholars out there who will spend the ensuing weeks defending the decision against people like myself, claiming we just don't understand the intracasies of the bill's specific language, but frankly it doesn't take a Constitutional law professor to understand that once you start using linguistic pretzels to justify a massive increase in the power of Congress, your decision is almost certainly a bad one.

Whether due to cowardice in the face of accuastions of partisanship or a genuine belief that he should not overturn Congress at all costs, John Roberts just gave us a giant shove towards the Event Horizon and flipped us all the bird while doing it.

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