How will the Court's ruling affect voters?....
The Court Liberals: Ginsburg's Governance. Justice Ruth Bader Ginsburg sets forth in her long partial dissent her view of the limits (essentially, next to none) on federal power. Ginsburg's dissent gives voice to the Hamiltonian view of nearly unbounded federal power that has been ascendant in legal circles since the New Deal. It disfavors the Madisonian view that cedes more to the States. Her view, through strongly progressive, should not be called "political"--any more than is the Madisonian view. Both have roots planted early in the republic's life. The Hamiltonian sensibility leads its adherents to a "living Constitution" view of judging; the Madisonian view leads towards some form of "originalist" thinking, one that places more emphasis on federalism and limits to government power. Disciples of Hamilton see federal power as limited only by the discretionary self-restraint of those exercising it, in accord with "evolving standards" of need and of justice; disciples of Madison see limits on federal power grounded in originalist constitutional principle that apportions the republic's sovereignty between federal, state and popular sources. It is a struggle that goes on, and will go on, so long as the republic endures.
One attorney calls Ginsburg's opinion "the new textualists' finest hour." In a contrary vein, Andy McCarthy sees a Hamiltonian vision of the General Welfare Clause driving excess federal expansion. McCarthy sees the Court ratifying a fraud perpetrated on the public:
Yet this is essentially what Chief Justice Roberts & Co. did. They said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences — like tax and penalty — and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly.
Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.
McCarthy concludes:
Had ObamaCare been honestly presented as a tax, or had the Court acted properly by striking it down as an illegitimate use of the commerce power and telling Congress that if it wanted to pass the bill as a tax it would have to pass the bill as a tax, our dire financial straits might have forced this much needed debate about the limits of congressional welfare power.
We have now lost that opportunity through fraud: fraud in the legislative action, and fraud in the judicial review. Due process would not allow this to be done to a criminal, but the Supreme Court has decided that Americans will have to live with it.
Markets. Economist Irwin Stelzer explains how O-Care, being a major economic tax, will harm the economy. One subtle, pernicious impact is on small medical innovation firms:
Manufacturers of medical devices will face a 2.3 percent tax on their gross sales, which will come to as much as 40 percent of the net profits of smaller “med tech” companies, an example of how tax policy is often crafted by a government-big business coalition to the disadvantage of smaller competitors.
At TAS, Andrew Wilson details the raft of coerced bargains Team Obama extracted from frightened industries, to win credibility and support for O-Care. These deals, Wilson writes, are unravelling now.
Politics. If Roberts tried to save the Court from being tarred as political, he won temporary respite from the Left, which will savage him anew the next time, in a big case, he sides with conservatives. And in "saving" the Court he sacrificed--at least for now, with many former supporters--his own reputation. Conservatives will not forgive this--especially if ObamaCare is not repealed, either because "O" wins or, if Mitt wins, Democrats keep the Senate. Law professor Randy Barnett is more optimistic, seeing a "win" for the Constitution in curbing the Commerce Clause's hitherto near-infinite reach, and in limiting the ability of the federal government to use federal funds (Medicaid, in this instance) to coerce states into legislating changes in their laws and budgets.
But a WSJ editorial concludes that Roberts bypassed traditional jurisprudence on taxes to expand the taxing power beyond anything to date. Put simply: the Constitution covers two classes of taxes: "duties, imposes and excises" in Art. I, sec. 8--these are indirect taxes covering taxpayer activity; and "direct taxes" in Art. I. sec. 9, cl. 4, which cover taxpayers' mere existence. The latter must be apportioned equitably by population. Roberts, however, applied indirect tax rules on activity to the context of inactivity; instead the direct tax rule should have applied. Roberts thus eviscerated a constitutional prohibition against unapportioned direct taxes, which is what the O-Care's mandate tax does. Roberts thus finds that the same people who are inactive under the commerce clause, in not entering the market, are active for tax purposes!--which is the only way he can transform a direct into an indirect tax. Legal eagle John Yoo agrees, seeing a vast increase in federal taxing power.
Roberts did all this, as LFTC explained Friday, to "save" the statute from being declared unconstitutional. Yet the hallmark case on judicial review, the famous 1803 Marbury v. Madison ruling, Chief Justice John Marshall--himself a dedicated Hamiltonian--flatly states that when an act of Congress is repugnant to the Constitution it MUST be declared null and void--that is, struck down as unconstitutional. The Court, Marshall wrote, has a duty to declare this--it cannot lawfully "save" an unconstitutional statute. This expresses limits of judicial deference to legislative prerogative.
Arguably, Roberts actually sent a signal that the Court can be intimidated. Obama warned the Court in April that any decision overturning O-Care would be "political." If Roberts wanted to send a message, it should have been that the Court will not cut its conscience to fit today's liberal fashion. After all, he has life tenure. But if he returns to the fold in the future, Roberts may--at least, partly--redeem himself (especially if O-Care is repealed). On ABC News "This Week" George Will predicted that next year the Roberts Court, 5-4, will end federal affirmative action funding, and also end use of federal funds to enforce the 1965 Voting Rights Act.
CBS Supreme Court reporter Jan Crawford writes that Roberts switched on the tax issue a month before the ruling was handed down. WSJ's John Fund reports that a spate of Democratic warnings in May--after the justices met to originally discuss their views--likely were prompted by leaks that Roberts was leaning towards overturning the entire law. Roberts could have stayed 5-4 on the right side, and stated from the bench before reading excerpts of his opinion, this: While the Court accepts that vigorous criticism of its decisions is fair game, intemperate vituperation and slander of its motives is not, barring strong evidence of bad faith. Unhappiness with the outcome falls way short. Instead, Roberts will see more warnings to come in key cases, where the Left thinks his vote can make a difference.
Now, the only corrective left is Romney + a GOP majority on both houses of Congress. Jen Rubin sees exploding O-Care costs killing Obama's budget numbers. She notes that about 75 percent of taxpayers making less than $200,000 will face the new tax, and that RomneyCare only affected the 8 percent of Massachusetts voters who were uninsured. JenRu also sees VP-prospects better for two GOP possibles: House Budget Committee Chairman Paul Ryan and Louisiana Governor Bobby Jindal; both are supremely knowledgeable about health care.
Bottom Line. Now Mitt Romney will have to take the unpopular law and the administration's dishonesty, and make repeal a centerpiece of his campaign. As for the Court, in curbing the federal interstate commerce and federal funding powers it has imposed new limits on federal power. And though it expanded federal taxing power, that power is far more susceptible to public pushback--especially in these hard economic times--than are the commerce and funding powers. History may prove this to have been, on Roberts's part, a net plus for curbing federal governmental power. Likely it will take years before we find out.
Letter from the Capitol, LFTC, Economy, Conservative Politics
Comments