No, Conservatives Did Not “Win” Anything In The ObamaCare Decision

Once the initial shock of Chief Justice John Roberts’ decision to uphold the Patient Protection and Affordable Care Act (ObamaCare) began to wear off, many conservatives and non-conservatives began to spin the decision as victory for conservatives.

Allah has a good round up of this “the operation was a success but the patient died” line of thinking.

Let me take a couple of examples.

Writing in Slate, Tom Scocca makes the unsupported assertion that Roberts and the dissenters “gutted” the Commerce Clause.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).

The business about “new and potentially vast” authority is a fig leaf. This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

All I can say to that is, if only!

Sadly, this “gutting” and “substantial rollback” is only in the minds of people who don’t seem to notice not a single Commerce Clause case was overturned yesterday. Wickard v. Filburn and its progeny still live.

What the Court said yesterday was the Commerce Clause may not be stretch beyond any limit at all and that Congress’ novel attempt to create commerce in order to regulate is may not stand. Keep in mind this was not a power anyone thought the Congress had since it’s not something that had been tried before in the entire history of the United States.

Calling this a “victory” or “a gutting” is like saying someone who was mugged “won” because they were only beaten to a bloody pulp instead of killed. Well, OK but in the real world the proper outcome is not to be assaulted at all. That’s the true victory.

Of course this also ignores two minor details, the mandate stands and now Congress may impose a penalty, er tax, on economic inactivity, something no one thought they could do before yesterday. Do you really think there aren’t liberal policy gnomes in Congress, think tanks and universities already hard at work coming up with new and exciting ways to make mischief with the tool Roberts just handed them? If you don’t, you’ve missed the last 80 or so years of the Democratic (and sadly, all too often the Republican) party’s history.

George Will makes a similar argument but from a conservative point of view.

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

Pardon me if I’m not impressed.

We’ve been down this “the court is reining in the Commerce Clause!” road before. The last time the Court tried to place limitations on the use of the Commerce Clause were in the Lopez and Morrison cases. Sadly this laudatory trend was killed in the cradle by the noxious Raich decision (authored by conservative hero Antonin Scalia of all people).

Why would anyone think that this ObamaCare decision (which dealt with a unprecedented assertion of congressional power) will have a more lasting impact that Lopez and Morrison (which dealt with more mundane exercises of Commerce Clause authority)?

It’s far more likely that future Courts and Congresses will simply look at the rejection of this unique theory as a one-time occurrence (which Roberts provided a work around to anyway via the Taxing Power).

The bottom line is that no other law or Congressional theory of Commerce Clause power was impacted by yesterday’s decision. Congress still can make as much mischief as they had from the New Deal.

Same Trende agrees that Roberts handed conservatives an important victory while preventing a showdown with the President over the Court’s legitimacy.  He analogizes yesterday’s decision to the seminal case on judicial review, Marbury v. Madison.

One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.

But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.

So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn’t stop there — to Marbury’s detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.

But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented — which is to say, most observers on both sides who have been ranting about the Constitution for the past few months — this is a clear win for the Obama administration, at least in the short term. By removing most legal impediments to the implementation of the law, the odds that the president’s signature legislation will eventually be implemented have risen.

The loss is especially galling for conservatives because they were extremely close to having the whole thing struck down in its entirety, immediately. That’s what Justices Scalia, Kennedy, Thomas and Alito would have done, and there’s some pretty good evidence that Scalia’s dissent was the majority opinion until fairly late in the day.

But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on.

Comparing the ACA to Marbury strikes me as a bridge too far.

First of all, this isn’t 1803 (less than 20 years into the republic) nor is the idea of judicial review a novel new theory being tried out for the first time. The Supreme Court has a long history of decisions and it’s role in the American political system, while often controversial and divisive, is well established.

On a practical level Marshall gave up something small, original jurisdiction over Writs of Mandamus, in exchange for something huge…the power of judicial review. Roberts traded an outer marker on the Commerce Clause that no one had ever considered reaching until two years ago for…well, nothing. The statute stands. He even threw in “a player to be named later” with his unique idea that Congress may tax economic inactivity.

What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts.  Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

In fact, Roberts has actually lost something very important (if this theory is right)…he’s shown that with enough bullying and threats against the legitimacy of his Court, he’ll give in.

The only people who ever insist a loss is actually a win are people who just lost. We need to fact that there is no pony underneath all of this, there’s simply a giant pile of manure.



*That’s not to say all the contentious decisions of those courts were wrong (Brown v. Board of Ed comes to mind as a precedent busting case that was most certainly correctly decided) just that the liberal forefathers of the people Roberts supposedly wants to keep the respect of, never showed that respect to others.

About Drew

I blog about politics and hockey because I sort of understand those things. I'd blog about women but I'll never understand them.

Posted on June 29, 2012, in Uncategorized. Bookmark the permalink. 25 Comments.

  1. Drew, I disagree. I agree that conservatives lost on the policy goal, but won on the doctrinal goal. Roberts’ opinion does indeed constitute a narrowing of Congress’ use of the Commerce Clause by stating that the Framers gave Congress the authority to regulate commerce, but not to compel it.

    However, the supermajority on the Medicaid expansion issue essentially makes ObamaTax completely unworkable, AND Roberts puts the battle back in the political arena.

    I hope your commenting feature allows posting links:

  2. “Of course this also ignores two minor details, the mandate stands and now Congress may impose a penalty, er tax, on economic inactivity, something no one thought they could do before yesterday.”

    1: The mandate stands now.
    So what? In fact, GOOD. The part of ObamaTax that people hate THE MOST is still active, and will come into effect if Obama is re-elected. You did want Obama to lose, yes?

    If the American people vote to re-elect Obama KNOWING that doing it means they get hit with an “Individual Mandate”, then they deserve it, and we’re screwed. No one’s going to get hit w/ it before the election, so it’s not yet harming anyone.

    2: Yes, before Congress had to give tax breaks to people who did “good” things. Now they also have the acknowledged power to tax you for not doing those good things.

    A: Do you think ObamaCare would have passed if it was made explicit that the IM was a tax? I don’t.

    B: If the tax is big enough to “force” you to act, then it will violate a long line of SC precedents, precedents that Roberts re-affirmed in his ruling. Which means this is not going to be a “tool” Congress can, or will want to, use much, if at all.

    3: Yes, the Salon article about “gutting” the Commerce Clause was whiny BS. Nevertheless, the libs WERE all POSITIVE that the IM fit in the Commerce Clause. But until they can get another vote, the answer is “no, it doesn’t.”

    Which brings us back to “get rid of Obama”. 8 years of Romney should get rid of Ginsburg, and maybe even Breyer, 4 more years of Obama might cost us one of the decent Justices, or maybe Kennedy.

    So, here’s the legal tally *I* see:
    We didn’t get screwed on the Commerce Clause
    We didn’t get screwed on “Necessary and Proper”
    We didn’t get screwed on Medicaid Expansion, and using it as a back door to the public option
    We got screwed on “Mandate as Tax”, but it was a mild screwing, and he used lube.

    Would I really rather we hadn’t gotten that last screwing? Yes. But my desires aren’t controlling. And the above met my “minimum acceptable result” (no Commerce Clause expansion for mandates), which I was hoping for, but did not think was guaranteed.

    Now, here’s the political tally I see:
    Romney gets to run against the IM
    Obama, who ran against the IM in 2008, is going to have to run for it this year
    Romney gets to run against Obama raising middle class taxes
    Obama is exposed as a big liar, on a big issue that people care about.
    TEA Party types have been re-energized, and given a strong reason to get out and support beating Obama, and every Democrat Senate candidate. Hello PA, Ohio, W VA, MO, and FL. IIRC, all 5 of those either voted for ObamaCare, or are on record against repealing it. IIRC, all five states have strong majorities opposed to the IM. Let’s flip all 5, ok?

    Would I rather that ObamaCare had been completely overturned? Hell yes. Given that it wasn’t, do I think we can use that politically? Hell yes.

    If we win in Nov, we can kill ObamaCare the good old fashioned way, with a repeal law. If that happens, there will have been no real harm done to the Constitution, and a great deal of harm done to the left.

    If we lose in Nov, we’re screwed. That is and was true no matter WHAT happened w/ ObamaCare.

  3. I think you hit on every point I’ve made in the last 24 hours. But in more stylish prose.

  4. I’ll go further in that not only did conservatives not win anything in this battle, nobody except massive pro government people did.
    I have three people here at work who are not insured by choice, all three could care less about politics right up until the particulars of how this bill will effect them should it not be replaced.
    The upside is that they now are wanting to get voter ID cards.When you tell people the benefits of having health insurance verses having actual dollars taken from them where it wasn’t before they rise up.
    Vote, replace the people, reconcile the bill away and replace.It will happen.

  5. Robert’s serves those (the Elite’s of the legal community) that view the Court as some sort of Regal institution and who care more about the perception of the Court’s legitimacy than about the Constitution or the rule of law. When was the last time any of these Justices spent more than an hour with non-lawyers? Do they ever even buy a soda at a convenience store or eat at McDonalds? I venture they are more cloistered than the President.

  6. Drew,

    Before the decision came down, what were your “must haves” and “nice to haves”?

    My “must have” was “IM is not allowed by the Commerce Clause or the Necessary and Proper Clause”. My “nice to have” was “kill it, dead.”

    If the majority had struck down the IM, killed “Must issue” and “community rating” as being inextricably linked, and left everything else in ObamaCare except for the Medicaid expansion, I would have counted that a win. How about you? It wouldn’t have been my preferred win, but it would have been a win.

    Politically, I feared that win. Because it would have gotten rid of the most unpopular part of ObamaCare, while still leaving the rest of the monstrosity to screw up our health care. I figured Romney would still beat Obama, but this left a “good” chance that the Dems would keep the Senate, as the low info voters voted for “balance” to keep the Republicans from running wild the way the Democrats did when they got handed everything.

    Instead, I got my “must haves”, and the IM is still there, forcing everyone who opposes it to either vote Republican for the House, Senate, and Romney, or admit they don’t really care about the IM.

    IOW, we now have a solid “in” with 60% of the voters.

    Politically, that’s a win.

    As for the tax issue: NO ONE was willing to claim at the ObamaCare oral arguments that the IM could NOT have been explicitly passed as a tax. So far as I know (I haven’t finished reading the dissent), none of the 4 who wanted to strike the whole thing down claim that the IM couldn’t have been passed as a tax. They just said (correctly, IMHO), that Congress didn’t call it a tax, so Congress can’t use the tax power as its justification.

    So, no, Roberts didn’t give the Left anything new. This one time only, Congress was able to pass a “mandate” without admitting it was really a tax. But they’ll never get away with that again, because this ruling says the only way you can do a mandate is as a tax.

    So, by all means, be pissed at Roberts. But it’s still a Repubic, “if we can keep it.” So lets win this election, and keep it.

  7. THANK you! I’ve been trying to convince those in denial for the last day now that this was no conservative victory in the least. If Roberts truly wanted to gut the commerce clause, then he should have voted to strike down the law knowing that would have far more impact. Instead, he actually HELPS the administration by handing the law back to them as a tax! Optimism is one thing, but those who are claiming even a small victory are flat-out deluded. This was a crushing defeat to both Conservatism and the Republic, not to mention the largest tax increase in American history. There is nothing good about this ruling. Nothing.

  8. Thank you.

    As far as I can tell, a good 50+% of those trying to spin this as a win seem to think politics is an end unto itself, rather than the means by which we enact policy. They do not see that the wrecking ball has taken out most of the structure.

    The rest of them tell themselves we have another hundred years or so to fix this mess.

    It’s like there’s a monstrous Somebody Else’s Problem Field over the entire machinery of government.

  9. Sgt. York: ObamaCare is now a middle class tax increase, and you call that a WIN for the Democrats? In what world?

    Nynaeve: Have you been paying attention to all the ways Obama has damaged the US over the last 3+ years? Fast and Furious? A “Justice” Department that is entirely racist? EPA run wild? Executive Order DREAM? Any of these things ring a bell?

    We’ve got a bit over 4 months to defeat Obama, and stop all his, and the rest of the Democrats, assaults on America. Not 100 years, 4 months. ALL the ObamaCare decision does is make the stakes clear even to the low info voters: If you don’t want the Individual Mandate, vote Republican. If you don’t want your taxes to go up, vote Republican. If you don’t want to lose your current health insurance, vote Republican.

    If Obama loses, and Republicans take the Senate, then the decision will have given the Democrats NOTHING.

    If Obama wins, then we’re f*cked. But we already knew that, no?

    If you expect the Courts to protect the voters from the consequences of the voters decisions, then you’re at least 2/3 of the way to Kagan and Sotomayor. 2006, 2008, the voters voted to give the Democrats power. As a result, they got ObamaCare and the Stimulus. 2012, either the voters chose to take away that power, or the voters will have gotten what they deserved.

    Roberts decision sucked. But it will only HURT if we don’t win in November. So let’s stop worrying about Roberts, and worry about winning in November, instead.

  10. Fluke John Roberts. I hope he wallows in guilt for the rest of his miserable traitorous life. The man showed his true colors. He a monster of the worst sort. A guy who just handed the government unlimited power to make us do whatever the hell they want.

  11. The American Experiment is officially over. The President routinely ignores the Constitution, Congress does as well. The last leg of the GIvernment has now joined the club with this and the Eminent Domain decision a few years back. We are officially screwed. Game Over! The Leftist Takeover is complete.

  12. Bingo.

    This is the point I was trying to make–ObamaTax is absolutely unworkable without the Medicaid expansion.

  13. Your all going to get to vote on it.
    Hopefully no cheating.
    WI was an amazing warm up.
    Smite these leftard projectionists for all time.
    One man will not give you back America.
    Even George Washington had an army.

  14. You know, I hate it when people say “If the American people vote to re-elect Obama KNOWING that doing it means they get hit with an “Individual Mandate”, then they deserve it, and we’re screwed”. I’m tired of getting screwed because people who can’t make up their mind what ideology they support suddenly decide that the liberal guy is who they want. I’m tired of the squishy right going along with every half-baked big government program spending like there’s no tomorrow but insisting on low taxes, driving up the deficit. I’m tired of the GOP constantly pushing squishy conservatives/RINO’s as our presidential candidate. I’m tired of anyone last named Bush who think they have the key to what ails this country (hint, it isn’t more Bush). I’m sick and tired of the liberal media, Washington elites, and Republicans from strong +R areas that vote for big government. Frankly, I’m just tired.

  15. My legal theory is that the Constitution is a living, breathing, radically conservative document full of undiscovered individual freedoms and restrictions on government. It actively seeks conservative outcomes. For instance, the ratifiers of the 16th amendment couldn’t have imagined our present level of taxation, so the courts should hold that tax rates can’t exceed the original tax rate. Unarmed citizen realize the benefits of armed citizens without the expense of purchasing arms and should be taxed to mitigate the free rider problem.

  16. Thanks Drew, well said.

    Personally, I think the win-spin is less about tactical considerations than the desperate minds of GOP jersey-wearers trying to avoid the realization that Roberts is a turncoat-that they were completely wrong in their impressions of him back when he was nominated as the best and brightest we could come up with. YMMV

  17. gregg: “Sgt. York: ObamaCare is now a middle class tax increase, and you call that a WIN for the Democrats? In what world?”

    None, because I didn’t say that. I don’t know whose comment you read that in but it wasn’t mine. I said it was a loss for Conservatism and the Republic…I never said it was a win for the Democrats. And the rest of your comment, while admirably optimistic, has a whole lot of “if” coming off it. Still doesn’t change the fact that Roberts ruled erroneously and that it was a defeat for the Right.

  18. I’d like your permission to cross-post this at David’s website… Link given.

  19. This is still too much analysis. The real lesson is that the Court can ALWAYS find some reason to uphold expansion of federal power. How this particular decision affects the Commerce Clause, etc. is beside the point. It showed us that precedent won’t be followed anyway.

    Let’s look at a how Roberts did it this time. (a) He used an argument that the government itself did not make. (b) He used an argument that no appeals court made. (c) He use an argument that his own decision contradicted (tax for tax & spend purposes, not a tax for can-it-be-brought-before-the-court-yet purposes). (d) He used an argument that was so clearly unconstitutional and illogical that 4 members of the Court called it “sophistry”.

    So the same kind of thing can be done at any time in any case. Neither the Constitution itself nor precedents matter, much less logic. The Constitution is an ink blot, chicken entrails, and they can find whatever the fuck they want in it.

  20. Jay Cost had a thoughtful article today.

    After reading it, I wasn’t too happy but then something occurred to me that I haven’t seen elsewhere.

    Had Roberts left ObamaCare as a Commerce Clause penalty, we would never have been able to repeal it via reconciliation with 50+1 votes in the Senate, assuming we can take the WH and keep the House.

    So Roberts has handed us the easy route to repeal via reconciliation. Maybe that is worth something, even as we grumble that Roberts didn’t choose to go over the top for us on the Commerce Clause at this juncture.

    Roberts may be proven wrong as history unfolds but he is a subtle lawyer.

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