Obamacare Upheld, 5-4 Decision as Justice Roberts Sides with Liberals

[Warph]

             


http://townhall.com/tipsheet/guybenson/2012/06/28/breaking_obamacare_upheld_54_decision_as_roberts_sides_with_liberals

Obamacare Upheld, 5-4 Decision as Justice Roberts Sides with Liberals
By Guy Benson
6/28/2012


The verdict is in, and it's a major disappointment to Obamacare opponents. CNN initially reported that the individual mandate had been struck down under the Commerce Clause, then corrected its reporting: Obamacare has been upheld as a tax. It looks like Obamacare's Medicaid expansion has been limited, but not struck down. Chief Justice Roberts has reportedly joined the Left flank of the Court, authoring the decision (the key bits are on pages 31, 32).

Confirmed: The decision was 5-4, with Justices Scalia, Kennedy, Thomas and Alito dissenting. According to SCOTUS blog, the four dissenters were prepared to strike down the entire law. Wow. Chief Justice Roberts saved Obamacare, plain and simple. Very few people envisioned that scenario. The paper thin silver lining for conservatives is that Roberts limited the seemingly boundless Commerce Clause by writing that it does not justify Obamacare's central pillar. Instead, he ruled, it's legitimate as a tax - precisely what President Obama had explicitly argued was not the case in selling the law to the public. Everything in this law -- from the mandate, to the broad expansion of Medicaid, to all of the rules and regulations -- has been declared Consitutional by the High Court. Here's the inevitable 2009 flashback of Obama telling a nationally televised audience that Obamacare is absolutely not a tax. SCOTUS just disagreed, to the president's benefit:

The only way this deeply unpopular law goes away is through legislative repeal. That only happens, realistically, if President Obama loses in the fall, and Republicans seize the Senate while retaining the House. Even then it will be an uphill fight. Don't buy anyone's spin that this is somehow "bad news" for Obama. Yes, it will fire up conservatives even more and hand Mitt Romney a sledgehammer issue ("middle class tax hike," anyone?), but the president's signature accomplishment has survived. It will be hard -- but not impossible -- to uproot. The "plain English" upshot, via SCOTUSblog:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

Remember that "paper thin silver lining" I mentioned earlier? Not so fast, says Phil Klein:

RT @PhilipaKlein: Upholding mandate on taxing power grounds grants Congress even more expansive power than if it were upheld on CC grounds.

On the other hand, a top SCOTUS blog analyst dissents from Klein's view: "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." The four dissenting justices are ripping this decision as "a vast judicial overreaching." Chief Justice Roberts, against whom Obama voted as a Senator, allied with Kagan, Breyer, Sotomayor and Ginsburg to affirm said overreach. Republican leaders are beginning to react, turning today's seismic decision into a rallying cry for full repeal. Sen. Mitch McConnell:

"Today's decision makes one thing clear: Congress must act to repeal this misguided law. Obamacare has not only limited choices and increased health care costs for American families, it has made it harder for American businesses to hire. Today's decision does nothing to diminish the fact that Obamacare's mandates, tax hikes, and Medicare cuts should be repealed and replaced with common sense reforms that lower costs and that the American people actually want. It is my hope that with new leadership in the White House and Senate, we can enact these step-by-step solutions and prevent further damage from this terrible law."

Let's circle back to the politics of this: Less than an hour after the ruling came down, Mitt Romney had already raised over $200,000 (and counting) online. House leadership has announced that it will hold another vote on full Obamacare repeal sometime on the week of July 9th. As I predicted, GOP officials are already referring to the law as "Obama's middle class tax." The public already detests this law, and a super majority will dislike the Court's ruling. The Republicans' message from now until election day will be, the only way we can rid ourselves of this middle class tax-hiking, patient hurting, rationing-centered, deficit-and-premiums-increasing pestilence is to toss Democrats out on their ears. Former Townhaller and current staffer for Sen. Jim DeMint, Amanda Carpenter, has it exactly right: "If Obamacare was presented as a tax, it would have never passed." Yup. Even with the Democrats' supermajority. This is why Obama and his team had to run around insisting that the law was not a tax. The backlash begins, via the RNC:

Freshman Sen. Mike Lee (a former SCOTUS clerk) offered this assessment of today's developments in a telephone interview with Townhall:

"[The decision is] not as bad as it may seem initially. This is a hollow and temporary victory. SCOTUS expressly concluded that the mandate falls outside of Congress' Commerce Clause authority. This only the 3rd time in 75 years that they've done that. They shoehorned it through as a tax, and the American people won't stand for that. The Court really messed up with that part of their decision -- it isn't a tax, it wasn't sold as a tax, it doesn't have the hallmarks of a tax. I respectfully but forcefully disagree with the opinion. Politically, we have to take this thing down. We're going to win. People are going to show up in droves in November."

Here's McConnell on the Senate floor, moments ago:

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[Bullwinkle]

    God help us. The picture says a thousand words. I'm going out to get more ammo, while I can.

[Warph]

Romney reacts: America must choose Obama's path, or the Founder's path
By:John Hayward
6/28/2012 12:30 PM


Presidential candidate Mitt Romney, who has promised to begin the repeal of ObamaCare with executive orders on his very first day in office, held a press conference to react to the Supreme Court's ObamaCare decision on Thursday morning. "What the Court did not do on its last day in session, I will do on my first day as President of the United States," Romney vowed.

Romney pointed out that the Supreme Court upheld the constitutionality of ObamaCare, but they didn't bless the quality of the law. "It was bad law yesterday, it's bad law today. It was bad policy yesterday, it's bad policy today," he declared.

Since the Court magically transformed ObamaCare from an "individual mandate" into a tax, Romney estimated the value of that tax at over $500 billion dollars, plus a $500 billion cut to Medicare... and even that isn't enough to pay for it, since it will "add trillions to our deficits and to our national debt, and pushes those obligations on to coming generations."

Romney did say that a few of the basic concepts in ObamaCare's design should be kept. First was the false Obama promise that people would be able to keep their existing health care plans if they liked them. As it turns out, this was the second-biggest lie in ObamaCare, after "it's not a tax."

Another failed ObamaCare goal that Romney vowed to complete was lowering the cost of health care. ObamaCare is already blowing this into the stratosphere, and the great exodus of doctors from the medical profession has only just begun.

Romney also endorsed the idea of ensuring that "people who have pre-existing conditions know that they will be able to be insured, and they will not lose their insurance." That goal, however laudable, is properly a matter for welfare spending, not "insurance." Hopefully this will be addressed in Romney's detailed reform proposals.

In conclusion, Romney portrayed the November election as a choice between endless government expansion, reduced choice, economic collapse, and skyrocketing deficits, or "whether instead you want to return to a time when the American people will have their own choice in health care."

"I'm asking the American people to join me," Romney invited. "If you don't want the course President Obama has put us on... if you want instead the course that the Founders envisioned... then join me in this effort."

[Warph]

It looks like the SCOTUS decisions have effectively given Congress some monkey wrenches and ensured a rewrite/clarification by Congress that, at this point in time, will not have traction in a Republican House.  And we have yet to address the lawsuits already in the pipeline challenging other Obumacare provisions (eg: the IPAB death panel, Medical Privacy Rights, State of FL lawsuit, Catholic Church, etc.).

Some of the interesting questions I've seen asked are:

1) If it's a tax, and all revenue-raising bills have to originate in the House, would this invalidate the law since it originated in the Senate?  And since taxes can be repealed... what are the odds of it being repealed by Congress?

2) Will the ruling against Medicaid Expansion as unconstitutional be a death knell for Obumacare since this was needed to expand coverage to include the uninsured.  States have the constitutional right not have to expand their provisions and can't be stripped of funds for not complying with expansion provisions.

3) The mandate is not a mandate (regulated under commerce clause), but a tax (under constitutional power).  The SC ruled that the taxpayer could refuse to pay the tax and not comply with the mandate.  Does this mean it's not a tax if it is not based on income or apportioned?

Lastly: What does this mean for November?

1) The Obuma administration and Congressional Democrats wrote the legislation carefully defining it as not being a tax, sold this to the people as "not a tax" and yet that is the argument they made in front of the SC and the SC decides it is a tax.  Ironically, the bill would never have passed if it was defined as a tax.

2) Obuma promised his plan would not raise taxes.  So will this now be called the biggest tax in the history of America?  Will Obuma now be seen as the utlimate Tax and Spend Liberal?

3) Since around 60-70% of Americans, depending upon the poll, oppose Obumacare, how will this effect Romney's bid for the presidency?  It will be easy to ask if Obuma was knowingly lying to the American people when he claimed it wasn't a tax since he defended it before the SC as a tax.

Kinda makes Obuma and the Demorats look like the Keystone Cops:

[Warph]

Some more initial thoughts:

1) The broad taxing power of Congress has never been in doubt.  That's why administration lawyers switched to that argument as soon as they got into court, even though Obuma and congressional sponsors of the legislation insisted all during the legislative process that the mandate was not a tax.  I understand the Court's longstanding precedent of straining to interpret statutes to be constitutional (though, of course, that doesn't apply when liberal values are at stake, such as is the case for marriage laws that have been on the books for hundreds of years).  However, I am surprised that they credited the administration with that argument when it had denied charges that it was a tax increase during enactment.  It would have been easy for the Court to say, in response to the tax argument, that while it is true that Congress could have passed the legislation under its taxing power, it deliberately chose not to, and we will not presume to step in and legislate on behalf of Congress.  I'll bet that sort of argument rings through the dissents.

2) Obuma, through Obumacare, has now enacted the largest tax increase in history, and it falls squarely on the middle and lower classes.  That is not something I would want to be running on if I were him.  Republican messaging is already emphasizing this fact, as confirmed by the Court itself.

3) As I mention above, it appears that states can opt out of the expansion of Medicare without penalty.  This may be a big deal, or it may not... time will tell.  More analysis is required.  If they opt out, their taxpayers will still be subsidizing its expansion in other states, while also having to develop other means for covering their own citizens.  That may not be politically tenable.

4) Voters, who claim in polling to wish Obumacare to be repealed by a 2 to 1 margin, now know that if Obuma is re-elected that repeal will never happen.  Since either Romney or Obuma will win this fall's election, a vote for anyone but Romney is a vote for permanent Obumacare.  I hope Romney is true to his word and will end up repealing it, but if Congress passes a repeal or substantial revision of health care legislation, he will likely sign it.  Obuma will not.  After 2014, it will have been sufficiently put in place as to be substantially unrepealable.  So the 2012 election is the last chance to have a chance to do so.  Let us hope that the Republicans control both the House and Senate in November election.

Also... here you are, another statement about the court ruling it is a "tax"

http://www.scotusblog.com/2012/06/dont-call-it-a-mandate-its-a-tax/