Supreme Court Declines to Overturn Obamacare (UPDATED—see below)

June 28, 2012

Drudge and the AP are reporting that the Supreme Court has judged the individual mandate not unconstitutional.  Glenn Beck suggests that the reason Chief Justice John Roberts joined the liberals on this vote (making it 6-3 rather than 5-4) is so that he could write the opinion and make it as narrow as possible, minimizing the damage it can do in the future.  (Given the impressions I came away with from constitutional-law class about the two partial-birth-abortion Supreme Court cases, I can believe it.  Roberts is a wily one—that is, according to some people’s interpretation of his actions.)

(Correction and updates below the fold.)

Now we don’t have to wonder whether it would be, counterintuitively, worse for liberty if the Supreme Court struck the law down, because it would take away a major election issue and make it easier for President Obama to get re-elected.  We have to win the presidency this fall, and as many seats in the House and Senate as possible; it’s as simple as that.

Soldier on!

Correction (June 28th, 2012):  Apparently this decision was 5-4, not 6-3.  Glenn Beck is saying that Kennedy is actually on the dissenting side of this one, arguing that the whole law is unconstitutional!

Update (June 28th, 2012):  According to the Supreme Court, the individual mandate is not within the enumerated power of the commerce clause, but is constitutional as a tax.   Drudge remembers President Obama assuring us in no uncertain terms that it was not a tax:

. . . for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. . . .

I absolutely reject that notion.

(Notice where Obama makes the foundational liberal error of conflating government with everything else.  If you’re buying health insurance from a private company, and your premiums go up from one year to the next, that’s a “tax increase”!)

Update (June 28th, 2012):  Disrupt the Narrative’s reaction, from Mr. “P. Henry Saddleburr”: “Obamacare Upheld. Saddleburr Gives First Donation to Romney”.

National Review Online’s The Corner has a running feed of interesting comments.  John Fund says,

Some liberal Supreme Court watchers are issuing cautionary notes about the decision upholding the individual mandate under Congress’s taxing power. Lyle Denniston of SCOTUSblog notes that Chief Justice John Roberts decision that Congress could not pass the individual mandate under the Constitution’s Commerce Clause has implications for the future:

Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

In other words, Randy Barnett, David Rivkin, and the other lawyers who argued that the individual mandate was an unprecedented expansion of the Commerce Clause’s power were right. They may have lost the battle on Obamacare, but they now have some weaponry to win future battles on this issue.

John Hood (also about tax vs. commerce clause):

Chief John Roberts may have flinched from doing what his fellow Republican-appointed justices were willing to do — strike down the individual mandate as a violation of the Commerce Clause — but he did so in a clever way.

Kathryn Jean Lopez:

And so Senator McConnell e-mails:

Today’s decision makes one thing clear: Congress must act to repeal this misguided law.

Daniel Foster has the video of President Obama saying this was definitely not a tax.

Update (June 28th, 2012):  Katrina Trinko has a very interesting note that bears on the continuing national conversation (or non-conversation, as the case may be) about whether one side or the other is uniquely “uncivil”.  The first speaker she mentions is the executive director of the Democratic National Committee.  Let me know if you know of any example of anyone equally high on the tree on the conservative side publicly saying anything equally uncivil.

Read the other commentary at the Corner, too, it’s all interesting!

Update (June 28th, 2012):  Also related to the civility conversation, John Fund points out that Artur Davis (“the only member of the Congressional Black Caucus to oppose Obamacare in 2010”, who has since “moved to the right” and finally switched to the Republican Party last month) says,

But there is a larger story: this result shows the left’s continuing capacity to shape elite opinion by marginalizing positions that roughly half the country holds. Just as the left has caricatured opposition to same-sex marriage and abortion as retrograde and extreme, it just pulled off the same feat in the context of Obamacare: the case was made, and Roberts bought it, that a Court that has struck down 169 congressional statutes would somehow be dangerously activist if it added a 170th one to the mix.

Larry Kudlow says,

Of course the stock market dropped about 130 points. Twenty new or higher taxes across-the-board are bad for economic growth, bad for job hiring, bad for investors, and bad for families.

Update (June 28th, 2012):  The editors of National Review have weighed in:

The dissent acknowledges that if an ambiguous law can be read in a way that renders it constitutional, it should be. It distinguishes, though, between construing a law charitably and rewriting it. . . . The Constitution does not give the Court the power to rewrite statutes . . . .

. . . We are not among those who are convinced that we will be stuck with it forever if the next election goes wrong: The law is also so poorly structured that we think it may well unravel even if put fully into effect. But we would prefer not to take the risk.

Kevin D. Williamson sounds an even more optimistic note, though I’m not sure I’m persuaded yet:

While I had been hoping for an assist from the Supreme Court, my opinion about Obamacare today is the same as on the day it was passed: Don’t sweat it. We are going to see the law replaced with something more sensible, and we are going to get major entitlement reform in the deal to boot. That is going to happen regardless of who wins in November, or the Novembers after that.

Republican presidential candidate Mitt Romney, Speaker of the House John Boehner, Senate Minority Leader Mitch McConnell, Ohio candidate for Senate (to replace Senator Sherrod Brown) Josh Mandel, and other Republicans have already publicly renewed their commitment to repeal Obamacare:

Hat tip to the Weekly Standard.

Katrina Trinko and the Weekly Standard have some of that written down:

. . . I disagree with the Supreme Court’s decision, and I agree with the dissent.  What the court did not do on its last day in session, I will do on my first day if elected president of the United States.  And that is, I will act to repeal Obamacare. . . . Obamacare was bad policy yesterday; it’s bad policy today.  Obamacare was bad law yesterday; it’s bad law today. . . .

. . . If we want to get rid of Obamacare, we’re going to have to replace President Obama.

There’s a lot of resolve amongst our colleagues, and amongst the American people, to stop a law that’s hurting our economy, driving up the cost of health care and making it more difficult for employers to hire new workers.  The American people want this bill repealed.  What they really want are common-sense steps that will empower them and their families to choose the doctor they want, at lower cost.

Hat tip to Speaker Boehner’s office.

Today’s decision makes one thing clear:  Congress must act to repeal this misguided law

Hat tip to Senator McConnell’s office.  See also “McConnell Calls For Full Repeal of Obamacare”.

Josh Mandel for Senate:

Josh Mandel believes that the legislation must be fully repealed in order to reduce costs, protect access, and prevent this bill from doing further harm to the economy.

See also “Boehner, Cantor, and McCarthy React to Obamacare Decision”.

That’s why, when we return the week of July 9th, I’ve scheduled a vote for total repeal of the Obamacare bill, to occur on Wednesday, July 11th.

Katrina Trinko says that Romney and the Republicans have already raised a million and a half dollars on this decision.

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4 Responses to “Supreme Court Declines to Overturn Obamacare (UPDATED—see below)”

  1. Snoodickle Says:

    Glenn Beck’s theory makes no sense. Roberts could have joined the conservatives and struck down the law. The more convincing theory is that Roberts keenly felt the backlash from Citizens United, and did not want his tenure as Chief Justice consumed by controversy – a stunning example of judicial politics at its finest, or worst, depending on your point of view.


    • As noted in my correction earlier today, the decision wasn’t actually 6-3, it was 5-4; so no, Glenn Beck’s earlier theory (from a previous day, but then repeated on his show this morning as details about the decision were still trickling out in conflicting reports) no longer applies.

      • Snoodickle Says:

        The true debate will lie in whether (1) you can call something a “penalty” for one purpose but a tax for another, and (2) whether the individual mandate is in fact a “tax” within the meaning of Article I.


  2. […] last year—the most recent year available—he still rated fifth most liberal.)  Mandel immediately responded to Thursday’s Supreme Court decision by renewing his commitment to repeal […]


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