Lots of back and forth today on why Justice Roberts did what he did. I think Charles Krauthammer has it right:
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.
It’s true. It is our job. If the court had overturned Obamacare, the issue would be off the table for the election. As it is, four months left to go and Mitt Romney raked in over $2.5 million today after the Supreme Court decision (Update: As of 8:00pm Central, Romney had raised 3.2 million today). Ted Cruz, our Senate candidate here in Texas, said that right after the announcement of the Supreme Court decision they got a donation every TEN SECONDS even before they asked for any.
I call that a fired up base. You know what a fired up base does? They elect a new President.