The Day After

Surprise! We didn’t get our preferred outcome yesterday, but the sun came up this morning anyway. And I don’t have any more thoughts (intelligent or otherwise) on the Obamacare ruling.

Fortunately, Dr. Krauthammer does. Taking a sober look at the long view, he explains how this was Justice Roberts’ “Nixon to China” moment:

It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief.

I’m waffling between feeling this is “just about right” vs. “pretty thin gruel”. But don’t take my word for it – read the whole thing.

20/20 HINDSIGHT UPDATE: Well, my BS meter went clear past “pretty thin gruel” to “CRAP SANDWICH”. This is a stupendously convoluted decision that defies logic, particularly from a Chief Justice who claimed to be a constitutional originalist.

To wit: on the very first day of oral arguments, the court ruled that ACA was specifically not a tax. This was the entire reason the rest of the case was heard, because if it they’d determined it to be a tax, then the case would’ve been booted until at least 2014. This is because one cannot claim damages from a tax until it’s actually been collected.

So from that initial judgment, how does one arrive at the conclusion that ACA is something they’d previously determined it isn’t?

If that were really the case, then shouldn’t the entire decision have been stayed (or whatever the legal  beagles call it) until the full law went into effect?

Such is the pretzel logic of the credentialed elite.

Nothing political going on here. Move along. All is well!


Okay, I can’t not post something about the Obamacare ruling. This is stunning, not to put too fine a point on it. I had tried very hard not to get my hopes up too much, because it just doesn’t do any good to try and make predictions about such an opaque institution. The Justices frequently take positions that are 180 degrees from what we might expect. And a lot of people figured Roberts would vote to uphold only if he saw the verdict going that way regardless, in order to be able to write the majority opinion. This would’ve allowed him to set the boundaries of this law and hopefully limit the damage.

No joy – he ended up being the swing vote. I mean, really? Whiskey Tango Foxtrot, over?

My old man was a judge, so that plus watching Law & Order is the extent of my legal education. I suppose they have the authority to say the individual mandate can be considered a tax, though I think that’s a load of crap: if the government’s attorneys weren’t willing to make that argument, how can the Justices infer it on their behalf?

If there is any solace to be found in this, it’s that the mandate was rejected under the Commerce Clause. That is, the Congress can’t force us to buy something just because they think it’s good for us (unless they call it a tax, I guess).

Justice Roberts did qualify his opinion: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” And Rand Simberg posted this money quote from Roberts on his blog: “It is not our job to protect the people from the consequences of their political choices.”

Dadgum straight, that. Frakkin’ A, bubba. So we lick our wounds, pick ourselves up, and get on with the serious business of returning this country to some form of a Constitutional, representative Republic.

What’s never mentioned enough in all the jackassery that surrounds the health care issue is that the Left insists on imposing a 100% solution to a 10% problem.

I’m all for helping out people who are in real trouble, but that’s never been what this is really all about. Just because something sounds like a nice thing to do doesn’t make it constitutional.

I pray we are not yet completely at the mercy of the low-information voters, because there’s no shortage of political animals who view health care as something else entirely – that is, an opportunity to exert control.

We are increasingly ruled by tyrants. Plan and vote accordingly.