Obamacare

So, SCOTUS ruled that Obamacare is constitutional.  At first I was quite pissed about this.  Obamacare is, and remains, a horrible piece of legislation that is unconstitutional.  However, upon reading exerts from Chief Justice Roberts opinion, I have to admit there may be a silver lining to this cloud.  Now it could be that Roberts totally abandoned conservatives and changed his views, or it could be a shrewd political move meant to out-flank Obama and his socialist cadres.  Or maybe I am just grasping at straws...

Anyway, here is how I see it...

The Court ruled, 5-4, to uphold Obamacare in its enitrety, including the individual mandate.  CJ Roberts wrote the opinion for the Court.  In summary he noted that there two ways to interpret the law.  One way is where the mandate is just that, a decree that all Americans purchase the level of healthcare that the government feels you should have or face a monetary penalty.  The other is the one argued by Obama's attorneys before the court when defending the constitutionality of the law: that the mandate is merely a tax on behavior, a practice the government already uses in other areas of everyday life.  And in the case where a law has two interpretations, one constitutional and one not, there is a precident in the Court to favor the interpretation that favors the constitution.  So, the court ruled Obamacare constitutional based on the government's argument that is a tax, not a mandate forcing citizens to purchase something they do not want.

Now, let us be honest with ourselves.  While the ideal situation would have been that the entire law be struck down, that scenario was never likely.  The next best scenario was that the individual mandate would be struck down but the rest of the law would stand.  But what would happen in that scenario?  If the mandate were taken out, but the rest of the law upheld, it would loose its teeth as for individual citizens, but this is not the only issue here.  With the bulk of the law intact, its interpretation against religious liberty, namely forcing religious institutions to abandon tenets of their faith, still stands.  The provision forcing every employer that provides healthcare to give a mandatory level of care will stand, forcing employers to stop offering healthcare to keep costs down and making them reluctant to hire.  In short, only a portion of the what is wrong would be fixed, still leaving a juggernaut that will wreck the economy anyway.

So, CJ Roberts chose option number three.  He assented to the constitutionality of Obamacare.  Here is the crux of my argument.  I believe he did so for a specific reason: if Roberts assents he thereby gets to write the opinion and limit the laws impact, scope and meaning.  And this what he did.

In defining the mandate as a tax Roberts throws the entire "Commerce Claus" justification out of the window, ruling that the federal government has no right or authority to compel citizens to engage in commerce for any reason.  This is important as it was the key issue: can the federal government force people to buy a product they do not want.  Roberts decided definitely no!  He simply redefines it as a power Congress already exercises, rightly or wrongly is not the point here.  The point is that he makes sure not to the federal government any new regulatory powers.

The bad news is that the law stands...for now.  A law can still be repealed.  Worse is that it is upheld on grounds almost as shaky as the "Commerce Clause" justification.  To justify this under Congress's taxing power is in itself an assault on the constitution.  In defining Congress's ENUMERATED powers, Article I, Section 8 of the Constitution states that "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

To tax one group of people and not another based solely on behavior that is not illegal, but merely unliked by the government, is hardly uniform.  It is the same reason why the current income tax is unconstitutional.  It is not applied uniformly over the population.

So, now here is the good news.  First, no matter if the law in constitutional or not, it remains grossly unpopular and  gets more so everyday as more businesses are forced not to hire or drop health coverage to keep costs down.  With the Court's decision, Obama cannot distance himself from an unpopular law in an election year.  Now that it's constitutionality intact, Obamacare is now settled sqarely around Obama's neck.

Next, Obama cannot use the Court as a scapegoat anymore.  Campaigning against a mean, conservative Court out to get poor little Obama doesn't work when the Court does what you want. 

Third, to make a case for its constitutionality before the Court, Obama's lawyers were forced to acknowledge, indeed, forcefully assert that the "mandate" was in fact a tax.  So, in an election year, Obama's administration is now on record fighting for higher taxes on ALL Americans.  And this after he swore up and down in 2009 that Obamacare would never raise taxes on the middle and lower class.

Lastly, in the fight to repeal Obamacare, this is now a huge weapon.  Americans hate taxes of any stripe.  So, with this defined as a tax, it will be easier to pitch to people to get rid of it.  "You want lower taxes, get rid of Obamacare."

So, as I said, I may be reaching here...but, while not ideal, there is a silver lining to this horrible cloud.