On Thursday, June 28th the United States Supreme Court announced Obamacare to be unconstitutional under the Necessary and Proper and Commerce Clause.  But in a 5-4 decision authored by George Bush appointee, Chief Justice John Roberts, the law was found constitutional under the taxing power of the United States Congress.

This decision nearly a month ago has led to a torrent of views, opinions and articles on the decision.  Most conservatives have panned the decision, saying it makes little sense.  Liberals loved the decision, arguing that for the first time America can now cover the uninsured (never-mind the SCOTUS ruling made sure it could not with its Medicare decision).  But there are a few, such as Sean Trende at Realclearpolitics and Jay Cost at National Review that take a view that makes far more sense.  The SCOTUS’s decision in the short-term benefits the left and government power.  But in the long-term, where debates over taxes and spending are sure to dominate, the decision heavily favors the right and limited government.

How so some will ask?  Well, in the short-term Obamacare is free to be implemented, which means a host of new taxes and regulations that will crush the Healthcare industry.  Rural hospitals will lose federal funding, doctors will see cuts in Medicare reimbursement, Big Pharma and medical research companies will be hit with a massive bevy of new taxes and individuals who are 26 will be hounded by the IRS until they either pay a penalty (Individual Mandate) for not having Health Insurance or get it.  And this is just the tip of the iceberg.  As Obamacare creates new problems in the system both Republicans and Democrats are likely to call for greater governmental involvement in the system to fix the problem.

However, the SCOTUS’s decision did not hand the farm to the left and big government supporters.  Indeed, written in Roberts ruling were clear definitions of how he viewed the Commerce and N&P Clause.  It was not very favorable.  In his ruling on the IM’s constitutionality as a tax Roberts made it very clear the government could not force you to buy broccoli.  Instead, his decision showed a framework for what he views as Congress’s power to tax.

But so what many conservatives argue?  Roberts just gave Congress a massive new ability to tax.  That is true enough as far as it goes.  Congress could tomorrow conceivably pass a law saying you need to buy a car?  Would it stand up in front of the SCOTUS?  Of course not for obvious reasons.  But conservatives need to be careful here to not mistake the tree for the forest.

Robert’s ruling gave the government more power in the short-term. But in the long-term just how many politicians are going to be willing to  argue for more taxes on everybody?  In fact the current debate on taxes largely focuses on only taxing a small percentage of high income earners, not the whole nation.  Only one party supports it and they have internal debates about whether it is smart or not.

History also matters here.  Traditionally the Federal Government has extended its power not through the Taxing Power but either the Commerce Clause or N&P Clause.  Both of those were severely curtailed in the ruling.  But in terms of the Commerce Clause the government was handed a double whammy in the ruling.

The Supreme Court did not fully affirm the law.  In a fairly substantial 7-2 ruling the SCOTUS found the Federal Government could not force states to opt into expanding their Medicaid rolls by threatening to remove all federal funding for the state.  The Fed had gained deep inroads in forcing states to dance to their tune through the Commerce Clause.  To often the SCOTUS threw out many states 10th Amendment arguments.  But not that day.

This ensures that the law will not be able to cover as many people as promised.  Many large states with GOP Governors such as OH, WI, FL, TX, and a few with Democratic Governors such as CA and NY have said they are either considering opting out or will. Without states expanding their Medicaid rolls the promised coverage to millions of poor uninsured Americans is just another empty promise whistled through politicians mouths.

American politics is entering a new era.  For generations the debate has not primarily been how to distribute the pie but how to grow it to distribute more.  Now, with the economy stalled the debate is about who should get what in the pie.  This makes politicians less willing to push for higher or new taxes, at least on all Americans.  Without the N&P or Commerce Clause so readily available to extend Federal power, big government supporters will find it that much harder to extend their control.

And then there is the general make-up of the current Supreme Court to consider.  The court is generally viewed as being split between four conservatives, four liberals and moderate Anthony Kennedy.  But in truth Kennedy is really libertarian on War on Terror cases and conservative in terms of governmental power.  With the SCOTUS’s ruling on Obamacare that dynamic has not changed.  Kennedy, along with the three other conservative justices, dissented against the majority opinion by Roberts.  He and the other conservative justices wanted the entire law struck down making Kennedy far to the right of Roberts on the issue and solidly marking Kennedy as a conservative on the court.

So what about Roberts?  Is he closet moderate? Not really.  Roberts has not shown himself to be a moderate, whatever his decision on Obamacare.  In the 2010 Citizens United vs. FEC case he also showed he had no problem overturning prior precedent.  He also helped allow the key piece of Arizona’s controversial illegal immigration law to stand and sided with individuals in Southern California arguing they should be able to have a say in where their dues go in a union.

A whole host of important and controversial issues are set to land on the Court’s platter in the next few years.  More lawsuits are sure to reach the Court on Obamacare in the coming years.  In the DC Appellate Court a debate is raging over TX’s new voter ID law.  It is expected the Appellate Court will shoot it down and Texas has vowed they will go all the way to the SCOTUS to argue its constitutionality.  In perhaps a view of the current Court’s views on the VRA, specifically Section 5, they overturned a San Antonio based district court decision on redrawing Texas’s Congressional district boundaries earlier in the year.  More campaign finance cases are expected to be heard.

Roberts has shown in past actions and deeds he is no turncoat to the conservative cause.  Instead, he may have given the movement a short-term loss in exchange for a long-term victory.


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