Cast-Off Obamacare Illusion
by Donald Devine
Issue 207 – July 11, 2012
For too many years now conservatives have bought into the progressive illusion that “the courts will save us.” Just get a majority of the Supremes and all will be fine. Well it did not work on Obamacare. If it did not work with this gang it will take another generation at best. By that time politics will have already determined whether we will remain free and Constitutional.
The founders of the modern conservative movement – following the Constitutional Founders – were not so naïve. According to James Burnham’s magisterial Congress and the American Tradition, ratified by Frank Meyer’s The Conservative Mainstream, the Founders did not create a Supreme Court to be supreme over the other branches, to make the laws, nor even to make final decisions on constitutionality. That is the job of all of the branches. The Constitution’s core is separation of powers and checks and balances, with Congress and the president in the forefront designing the laws and the courts applying them. They balance each other with none supreme.
As forthright Benjamin Franklin put it, we have a republic “if you can keep it.” In simple English, the Founders left it up to us. That is what elections are for.
The Court’s primary goal is to protect itself, which history proves starting with Marbury v Madison, then switching to “save the nine” from presidential court-packing (West Coast Hotel v Parrish) and to Justice John Roberts today. By being cute he sought to build the Court’s independence and to try to win the intellectual argument at the same time. But Roberts can only win the debate if Republicans win the 2012 election and have the courage of the Court’s minority opinion which correctly argued “the act before us is invalid in its entirety.” The Chief Justice, however, was looking to judicial power rather than constitutionality by declaring the individual mandate invalid under the Commerce and Necessary and Proper clauses but valid as a “tax.” It is amusing to read all of the conservative judicial supremacists writing “we have won everything but the case” or calling it “dangerous” by finally realizing the court is a political body.
Roberts was correct on the tax in this one regard: “We posses neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” As long ago as 1942, the Court had gone so far to rule that growing wheat on one’s own property only for personal use was interstate commerce (Wickard v Filburn). Roberts has now singlehandedly forced the liberal-progressive justices to limit the reach of this national government commerce power so subject to abuse by courts and Congresses for so long. Roberts is correct that this is an enormous intellectual victory and he is not loath to rub it in.
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. … Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.
As George Will has argued “If the mandate had been upheld under the Commerce Clause, the court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: ‘Under our written Constitution … the limitation of congressional authority is not solely a matter of legislative grace’.” Roberts concluded, “That is not the country the Framers of our Constitution envisioned.” The Supreme Court has not heard such strong limited government language in a majority decision in a very long time, perhaps ever.
Roberts also won a more substantive victory of immense proportions. By a 7 to 2 margin – including all the conservatives plus liberals Stephen Breyer and Elena Kagan – the Supreme Court ruled that the states could not be forced by Congress to expand the state-federal Medicaid program as required by Obamacare. Contrary to even such stalwarts as Robert Bork, federalism is not dead. At the least, the 26 red states that sued to be free from Medicaid can opt out. Practically, no blue state can afford to join it either, with state costs expected to increase by 20 percent in what already is the states’ biggest expense in an era of state retrenchment.
In fact, as columnist Holman W. Jenkins Jr. correctly noted, Obamacare is “doomed” by political and economic reality anyway. “The last thing we needed, in a country staggering under deficit and debt, a sluggish economy and an unaffordable entitlement structure was a new Rube Goldberg entitlement.” It is worse. The fact that states can opt out of the Medicaid provisions could leave half of the uninsured added by Obamacare still uninsured. The other half of uninsured were supposed to be covered by state “health exchanges” which several states are already threatening not to create at all or are delaying. While the Feds can implement their own replacement exchanges this would mean an enormous tax increase.
Obamacare is thus effectively gutted and even the liberals know in their hearts of hearts it must be reconstituted. Critically, now that Obamacare officially is a tax it can be repealed or revised under budget reconciliation which only requires a simple majority in the Senate, not 60 votes subject to filibuster. The only issue is who will design the replacement?
The fact that Obamacare has been declared simply one big tax program by the highest court in the land to accompanying liberal hosannas creates a little problem for Mr. Obama and the Democrats. If a bureaucratic monstrosity that retards recovery, does not help most of the poor get coverage, restricts middle class and youth health choices, and is an enormous tax increase, does not result in enough conservatives elected to Congress this year to fix this mess, the right is just incompetent and does not deserve to win. Cast off the court blinders and get out the vote.
Donald Devine, the editor of ConservativeBattleline On Line, was the director of the U.S. Office of Personnel Management from 1981-1985 under Ronald Reagan and is Senior Scholar at The Fund for American Studies.