Thursday, June 28, 2012


Well, at first I was shocked that the Supreme Court upheld the Obama health care law, with John Roberts joining the 5-4 majority, and with the mandate effectively upheld. But I think I see what's going on.

As I've said many times, I was sure the movement-conservative Supremes didn't want to overturn the law altogether, because that would deprive right-wing voters of motivation come November. I thought the mandate would go -- the law would be hobbled but would still be in place.

But I think the way supporters of the law got riled up about the idea of the mandate being invalidated led Roberts to believe that just overturning the mandate would motivate Obama voters in the fall. So he let us have our sense of victory. He wants us to let our guard down. (I'm not saying it isn't a victory -- we backed him down a lot. The law was saved. I'm just saying there's more going on.)

He upheld the law, but he motivated GOP voters by giving them a fresh set of talking points. I'll let a right-wing apparatchik -- Jennifer Rubin -- explain it for you:
The political and legal world just got turned upside down and shaken by the ankles. The individual mandate is not valid under the Commerce Clause. Chief Justice Roberts joined four other justices on that point.... But on grounds no one thought would be taken seriously, the taxing power, Roberts sided with the liberal justices....

The problem here of course is the Obama administration swore up and down it was not a tax. The Supreme Court in effect held that the Democrats imposed a tax on every American, something Obama swore up an down he'd ever do....

As for the political fallout, Obama is in quite the pickle, defending a nation-wide tax and a law a majority of Americans don't like. Mitt Romney will be able ... to fight tooth and nail against Obamatax....
We made Roberts fear the consequences to his beloved GOP if he killed the law, or mortally wounded it by making the mandate effectively impossible. So he upheld it as a tax, and now hopes he's making trouble for Obama. I don't know if this is going to work, but I can't believe it wasn't thought out precisely in this way. Roberts is an apparatchik, too -- he's not a jurist. So this is a tactical move in the right's long war.


UPDATE: Here ya go:

Also go here and here, and see the Chris Christie quote in Jennifer Rubin's update, all of which highlight the fact that the Court upheld the mandate as a tax.

Trust me -- the talking points were distributed on the right well before Roberts released his decision. Now the question is whether they'll work.


Peter Janovsky said...

I wouldn't put anything past Roberts et al. in terms of political motivation, but sometimes a "Decision is just a Decision." I note two things in relation to Roberts' vote: (1) Ideologue that he is, Roberts was not on the Bush v. Gore Court and I regard that vote as the ultimate litmus test for judicial corruption. (I'm not saying he would have voted with the minority on Bush v. Gore, but unlike Scalia et al. at least yet hasn't yet failed a test like that.) (2) Don't forget Bill Kristol's cynical 1993 anti-Clinton health care memo -- that the health care bill must be stopped because people may like it and support the Dems for a generation. (kind of a reversal of LBJ's post Civil Rights passage (true) prediction about the Dems losing the South for a generation.

Here's my Kos Diary on the Kristol comment in light of the decision.

Peter Janovsky said...

oops -- left out the link:

Unknown said...

Some times things turn out MUCH better than you have any right to expect.

Some days it's great to be a Democrat!

Jason said...

I think that Roberts likely wanted to strike the mandate while keeping the law, but that the conservatives on the bench decided to go full wing nut, leaving him with a choice:

1. Go with the conservatives, and be known as the chief justice who resided over the complete and utter politicization of the court (As John Chait called it, turning them into a new senate appointed for life.

2. Go with the liberals, follow the law as it stands, which is at least defensible, and preserve your legacy.

This reminds me a bit of the passage of the actual law - the conservatives pushed too hard, went all or nothing, and got nothing.

This was going to be a major base builder no matter how it turned out - at least this way we get to keep the law.

Bulworth said...

So how is this supposed to be a tax on all Americans, including those who already have coverage?

Peter Janovsky said...

Exactly Bulworth. It's time for Obama to explain that the mandate: 1. Has no relevance to the great majority of Americans who have or want coverage; and 2. Actually helps those who have coverage by reducing premiums (in theory at least).

Steve M. said...

So how is this supposed to be a tax on all Americans, including those who already have coverage?

It doesn't matter what it is. All that matters to the right is how it can be spun.

How is voluntary end-of-life counseling a "death panel"? (The only thing mandatory about it was that the law mandated its availability.) It was a "death panel" because a million wingnuts said it was. If so many people say something, surely it must be true, right? Same with this as a tax.

Chris Andersen said...

Suggested talking point:

The Supreme Court overruled the mandate. But they left the anti-free-rider tax in place.

Unknown said...

Or maybe Roberts bothered to read the law this time before making a decision?


BH said...

FWIW I lean towards P. Janovsky's & Jason's views above, as to Roberts' role here. After Gore v. Bush (in which Roberts didn't participate) & Citizens United, a big smackdown of the ACA would have made the S Ct look like it did during the 1st 5 years of the New Deal - a subsidiary of the GOP/US Chamber of Commerce. Roberts has an eye on the history books, like any Chief Justice.

As to the political ramifications, I surprise myself by feeling optimistic. Why? Because the only way for the wingnuts to use this amounts to asking the electorate to listen to the same old hysterical shit they heard all through '09 and '10, & although the wingnuts never tire of relitigating, I don't think the electorate's attention span goes along with that. Just my 2 cents, though.

Victor said...

This may be trickier than people think.

There are taxes, and then there are taxes.
And, as I've just recently heard, the SC has some limits on what it can do with laws where the tax has yet to be collected.

And, by NOT allowing "The Commerce Clause," Roberts is NO stooge, and may very well NOT be a good guy who saw the light.

There are MANY social safety net programs based ON "The Commerce Clause" - like SS, Medicare, Medicaid, S-CHIP, etc.

See any problems there in future decisions regarding SS and the other programs?

I'm not any Constitutional expert by any means.
But Roberts is.
And, while we're all cheering, I can't help wondering if he hasn't opened-up a huge, new, can of worms.

I can't help it.
I used to be an optimist - but the last 30+ years have whipped that out of it.

Peter Janovsky said...

Chris Anderson:

I love that formulation! Thanks.

Never Ben Better said...

Thing is, the anti-Obamacare forces have been hammering at the mandate from the git-go as a tax, so this ruling doesn't really add all that much to their repertoire of attacks anyway.

What does concern me is the potential threat to the Commerce Clause that Victor points out. One has to hope that the programs he mentions are so third-rail popular that they're safe from wholesale annihilation.

: smintheus :: said...

Roberts' dicta on the Commerce clause has no more significance than he can make of it in the future. The Commerce clause is extremely expansive, as it was intended to be; nothing that conservatives on the Court can do about that except with regard to the most marginal or indirect applications of it. Programs like SS are not going to be re-litigated and found unconstitutional anyway.

Roberts had the alternative of joining the crazies and invalidating entirely a massive law that included many popular and needed reforms that would save many lives, or finding some path to ruling it constitutional. The mandate was obviously framed as a tax break (however Dem legislators tried to conceal that fact), and there are very few limits on Congress' power to tax as it sees fit. Roberts probably couldn't bring himself to deny the obvious, partisan hack that he is, because to do so would make this Court forever a mockery. Also should be noted that Roberts is more devoted to business interests than anybody else on the Court, and ACA is a big slobbering kiss for the health care industry.

Joseph Nobles said...

Imagine if the GOP had always been saying "Obamacare is constitutional, but it's not a good law" all this time. They simply cannot help but overplay their hand.

Unknown said...

Sorry to be OT, but did I hear Tom Hartmann on the radio yesterday saying it's time to oppose judicial review of federal (not state or lower) action - legislation, at least - by the Supremes?

If he wants to start some sort of organization in support of that I'm game.