A Pyrrhic Defeat @ the Supreme Court

I find myself in a very odd position as I consider the Court's ruling on ObamaCare. When the first constitutional challenges were filed, I was not inclined to support them. That is because I am a judicial minimalist. I don't like it when big policy questions are decided by the courts rather than by the political branches.

On the other hand, the Court must uphold basic constitutional principles even when doing so effectively decides big political questions. I was persuaded that the expansion of the Commerce power that was the stated basis of the mandate was inconsistent with the principle of limited government. I thought that the Court should strike down the mandate on those grounds.

It seems I was right both times. I am pretty sure that what led Chief Justice Roberts to side with the court's left wing was his preference for judicial minimalism. He just didn't want to the Court to decide this issue by judicial fiat. I could be wrong about that, but I would rather not believe that he succumbed to the threats made against the Court.

There was, apparently, a five vote majority against the mandate on Commerce Clause grounds. The argument made in favor of the mandate was that everyone is part of the market for medical services and so requiring everyone to purchase health insurance (who is not provided it by the government) is merely a regulation of that market. However, the reason that everyone is part of that market, whether they like it not, is because we in fact offer health care to everyone whether they ask for it or not. Can government regulate any aspect of private behavior merely by extending a benefit relevant to that behavior and thus roping someone into a market? If so, then government's power over private conduct is indeed without limits.

Roberts and the right wing of the Court seem to agree. To uphold the mandate, Roberts introduced a new argument: that the mandate was a simple exercise of the tax powers. I won't consider that argument now.

There is no doubt that this was a very big win for the Obama Administration, if only because a loss would have been a disaster. If the Court had struck down the whole act, it would mean that most of Obama's first term in office was wasted. It also gives Obama something he dearly lacked up until now: a rational for reelection. I will nominate judges who vote to uphold liberal legislation. See how important that is!

On the other hand, this outcome exposes the Administration and Democrats generally on a number of fronts. Proponents of ObamaCare have vociferous denied that the mandate is a tax. That question has been settled. It's a tax or otherwise it is unconstitutional. It is not a small tax, either; it will count as one of the largest tax increases on record. Republicans will probably point that out. It is, moreover, a gargantuan tax increase on behalf of a piece of legislation that remains very unpopular. In his speeches so far, the President has tried to direct attention away from the core of the act and toward its more palatable aspects. That may be harder now.

Conservatives are in fact rather divided on the outcome of this case. Some view is as a calamity, and it may well be that for conservative causes. See Powerline. A very large expansion of governments regulatory and tax powers has survived a Court challenge. It won't be easy to undue that, even if Republicans win big in November.

Some conservatives think that Chief Justice Roberts, like Chief Justice Marshal in Marbury v. Madison, won the war by conceding the battle. See George Will and Jay Cost. He upheld the mandate, but forced everyone to recognize it as a massive tax increase. He put together a majority that limited Congress's power under the Commerce Clause. No, Congress can't compel you to buy something you don't want just because it thinks it's something you should have.

Roberts also struck a blow against Congress's power to compel the states to behave the way Congress wants them to. Here is a comment from John Steele Gordon at Commentary:

Roberts ruled that while the federal government can tie strings to federal money given to the states—in this case additional Medicaid funds—it cannot coerce the states by threatening to take away other funds unless its will is complied with. This is a tactic the federal government has been using for years to, in effect, make states mere administrative districts of the federal government. For instance, it forced the states to adopt 21-to-drink laws or face the loss of federal highway funds. Roberts is arguing that the states are, indeed, sovereign within their own sphere. That is also a big deal.

Yes, that is a big deal, if the Court maintains it.

I was hoping that the Court would strike down ObamaCare. I view it as a monstrosity. Part of it already collapsed under its own weight before it was ever implemented. Some of the consequences have been delayed by hundreds of wavers, issued by an Administration that wanted to delay the inevitable until after the election. The President solemnly promised us that if we like our healthcare we can keep it. Either he was ignorant about his own bill or he was lying. He sold the bill as a means of reducing health care costs and thus restore fiscal balance, but he didn't insist on any measures that would really reduce health care costs. No one thinks that this bill will lower the federal deficits. No one can yet know how it will work.

All that said, Republicans may well benefit from the fact that we will learn more about ObamaCare and how it really will work. I was well prepared for seeing ObamaCare upheld. I was very surprised by how gratifying the loss was.

ps. The most flattering view of Robert's action comes from Sean Trende.  Trende elaborates on my comparison with Marbury. 

Comments

[Kody K]

This sets precedent that the Government can decide what is best for you. It is an assault on freedom and it takes away your rights. The tax adds to it. Why I try to understand the liberal view, this is ridiculous. Healthcare reform, O.K. Mandate and a tax? Blah.

[Stan Gibilisco]

In my opinion, Chief Justice Roberts made the right call. He interpreted the law according to the Constitution, and he avoided judicial activism.

In upholding the mandate, Chief Justice Roberts did expose a big flaw in our Constitution: It allows for such things as this.

Apparently, if any Constitutional grounds can be found for upholding a law, then that law passes muster. This is quite scary stuff. For example, we could declare torture no longer in violation of a prohibition on "cruel and unusual punishment" (8th Amendment) if we did it enough so that it, no matter how cruel, was no longer unusual ...

It is up to us, the people, to elect a Congress that will fix the potential for abuse of Congress' own authority to impose taxes. It's a bug in the Constitutional program that this decision has revealed in a rather benign way.

I find this whole process fascinating. I think it shows that our Democracy still works. It's clunky and it surely needs a tune-up, but the old buggy's still running.

For now.

[A.I.]

KB: Did you not mean Pyrrhic "victory" in the sense ACA supporters won the Supreme Court battle but now must defend tax provisions of the law to voters and thus may lose the larger political battle? If so, I think you are correct in so far as there will be a political fight. However, that may not be a bad thing for Democrats in the 'what doesn't kill us makes us stronger' sense.

Democrats passed the ACA, but they have not done much to defend it or sell it to the public. Now they will be forced to do so and the law is certainly defensible--especially as compared to the system without it or any alternatives Republics are offering.

Most of the Republican arguments are hollow and/or disingenuous starting with "repeal and replace". When asked what they would replace the ACA with, they are short on specifics. What little they do offer are ideas that sound a whole lot like the ACA. Maybe that's because most of what the law contains were Republican/conservative suggestions in the first place.

You bring up one the worst arguments against the law in saying argue government is forcing us to use and pay for health care. It's our own accident-prone and disease-susceptible bodies that force us to use health care. Should we then not pay for it...at least to the extent we can? Sure, we could choose to leave particular malady untreated. We could also choose to put our tongue in a light socket.

I do agree that the ACA is a monstrosity in the sense it is incredibly complex. But then, so is the health care system is seeks to improve.

[larry kurtz]

Ken: how wonderful to see that you're not dead.

[Donald Pay]

"Repeal and replace" is just a focus-tested public relations slogan, as opposed to a real program. Actually, the rational Republicans and the yahoos are split the idea of "replace." If Republicans want to be taken seriously, they are going to have to fill in the details, and the convention would be a good place to do that. But they won't, because they can't.

[Spectre]

"It is, moreover, a gargantuan tax increase"
"No one thinks that this bill will lower the federal deficits."

If this bill were not put into place, would the deficits be lower? I don't understand how "one of the largest tax increases in record" would not bring additional money?

You do state that "he didn't insist on any measures that would really reduce health care costs" - which would certainly be a good place to look to help balance our health care budget.

[Eli Blake]

I don't see how it is a tax except for people who decline to participate at all. If you already have health insurance then nothing is any different whether the mandate is a tax or not. Are your premiums a tax? No, and they still are not.

If you are uninsured but obey the mandate then again, you are paying premiums to a health insurance company. So again, not a tax.

That leaves only the penalty (which might be considered a tax,) but I imagine only ideologues will pay the penalty because if forced to pay, most people would rather get something than nothing for their money.

[Ken Blanchard]

Donald: fair enough. The Republicans should come up with their own plan, and so far they haven't. That doesn't mean the ACA will work well or at all.

Spectre: No. If the gargantuan tax increase is coupled with a gargantuan spending increase, it won't lower the deficit.

[Ken Blanchard]

A.I.: every Pyrrhic victory is also a Pyrrhic defeat, no? To say that the Democrats have not done much to sell the ACA is absurd. The President gave scores of speeches on its behalf. No one believed a word he was saying because he said not a word that was believable.

[A.I.]

It is true Obama spoke often on behalf of the ACA. However, he was not arguing one-on-one against a political opponent who implemented virtually the same law as governor of a state and now is saying its bad policy. Nor was he arguing for a law that had survived a Supreme Court challenge.

It seems to me the latter may be an important factor in the continuing debate. Whether the victory/defeat was Pyrrhic or not, it does cast a new light on the discussion.