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Sunday, August 26, 2012
Remember the ObamaCare Ruling?

Here's a blog post I wrote weeks ago but never posted. It still seems relevant, so let's look for a few moments at the Supreme Court's ObamaCare ruling in late June.

It's been weeks since the US Supreme Court announced its decision as to the constitutionality of the Affordable Care Act, or ObamaCare. I heard the first radio report that the Court had overturned the Act and was pleased. Then came the truth: part of the Act was upheld and part overturned. My initial thoughts upon hearing (and later in the day, reading) parts of the decision itself were as follows.

First, I was pleased that a majority of the Court explicitly forbade the interpretation of the Commerce Clause as a source of unlimited federal power. Much abused in recent decades, the Commerce Clause now is overtly limited. It is a precedent which may serve conservative interests -- that is, the cause of limited, constitutional government -- very well in years to come.

Second, I was pleased that the Court invalidated the federal threat to revoke existing Medicaid funds for any state which refused to participate in the Act's new, oversized, unfunded mandate for massive Medicaid expansion. Thus, the federal power to strangle the states remains less than absolute.

Third, I was bemused by the the majority's argument that, essentially, a tax by any other name is still a tax. One wonders if the Court's reinforcement of this admittedly rather obvious notion will have some positive effect on our political debates.

Fourth, I was disappointed that the individual mandate was not overturned, but I saw the sense in pushing the burden back on the legislative branch and the people who elect it. The Court is probably not the right engine for a revolutionary leap in either direction, and the Obama administration has usurped so much of the legislative function that we must be glad for such power as Congress can still retain -- in this case, with the blessing of the Court. (Subsequent days brought another usurpation, the White House's abolition by executive fiat of the 1994 welfare reform legislation's central feature. One more lawless, tyrannical act among many.)

Fifth, I thought the decision insured that ObamaCare will be and remain a central issue in the 2012 presidential, senate, and congressional campaigns -- as it should.

Sixth, I was intrigued that Chief Justice John Roberts proved to be the swing vote, instead of Justice Anthony Kennedy, the perennial decider of 5-to-4 decisions.

Further thought and listening to and reading many others' opinions have confirmed and refined my early impressions, but not fundamentally altered them.

Whether you agree or disagree with the decision as a whole or any part of it, or the reasoning employed, this piece of the majority opinion is an interesting thought in our time, though perhaps also a bit chilling:

Members of this Court are vested with the authority to interpret the law; we possess 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.

(Note to self: Judicial restraint? How quaint! How refreshing! How, dare I say, constitutional!)

Here's a selection of commentary and articles I found interesting. They're several weeks old, but still relevant:

  • An early piece from CBS News about the possibility that Chief Justice Roberts switched sides late in the process. (The truth may not be so simple, but this is compelling and, to me, rather persuasive.)
  • There's speculation at Breitbart that Roberts yielded to bullying. (I am unconvinced.)
  • Charles Krauthammer on what Roberts may have been thinking.
  • George Will calls the decision a "substantial victory" for conservatives.
  • Paul Greenberg ponders judicial restraint.
  • David Harsanyi considers the implications of the tax and Medicaid portions of the decision.
  • Mona Charen says the decision's damage is real and provides some level-headed analysis.
  • Wes Pruden calls the decision a gift to Mitt Romney.
  • In a Fox News video clip, Senator Mike Lee explains his initial response to the decision.

As if the November election weren't already consequential enough . . .

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