Early Thoughts on the ObamaCare Ruling

http://www.futureofcapitalism.com/2012/06/early-thoughts-on-the-obamacare-ruling-2

A few initial observations on the ObamaCare ruling:

1. New media beats old media. CNN's initial report, that the law was struck down, was incorrect. More reliable was an independent site called Scotusblog, which reported 866,000 visitors tuned in to its live blog of the proceedings.

2. Though the decision will widely be portrayed as a victory for President Obama — his signature legislative accomplishment was ratified as constitutional by a Supreme Court majority that included George W. Bush-appointed chief justice John Roberts — it isn't necessarily clear that it will be a victory. By calling the mandate a tax, the court made an official ruling that President Obama had violated his 2008 campaign promise not to raise taxes on anyone earning less than $250,000 a year. And the ruling also keeps ObamaCare alive as a political issue. A ruling that struck down the law might have energized Obama supporters. This ruling may make the law's opponents even more determined to elect a Republican president and Congress so that they can repeal the law or, failing that, defund it.

3. There are already some voices on the right of center angrily denouncing Chief Justice Roberts as a turncoat. I actually think he probably made the right call. Not only for the legal reasons (the mandate, after all, is a tax, because the penalty for being uninsured isn't being thrown in jail or being deported but paying a tax), but because in the end it may well be better for the country for these decisions to be made through the political process rather than by a group of nine robed graduates of Ivy League law schools in a non-televised proceeding. Look at how Roe v. Wade polarized the abortion debate by taking it out of the political compromise and debate realm and placing it into the Constitutional law realm. A similar move by the court on the health care mandate might have had similar deleterious effects.

4. Finally, though the ruling was in some sense a vindication for Obama on the constitutionality of the law, in other ways it was a pretty emphatic rejection of the constitutional acumen of a president who is, after all, a former professor of constitutional law. Even Elena Kagan, President Obama's own appointee to the court and his former solicitor general, and Justice Breyer, a former aide to Senator Edward Kennedy, agreed that the Medicaid expansion part of the law was unconstitutional. In other words, one doesn't have to be a right-wing extremist libertarian Federalist Society member to find the ObamaCare law at least partly unconstitutional. And a majority of the justices, while finding the mandate constitutional under the taxing power, also rejected President Obama's claim that the mandate was constitutional under the Commerce Clause.

by Ira Stoll  |  Jun 28, 2012 at 11:04 am Related Topics:  Health Care, Politics, President Obama, Press receive the latest by email: subscribe to the free futureofcapitalism.com mailing list