Thursday, June 28, 2012

Seeking the half-full glass

While I am feeling very glum about Justice Roberts' decision to uphold the mandate as a tax, there are some bright sides to his decision.

As John Fund and Ilya Somin write, by saying that the mandate would be unconstitutional under the Commerce Clause, the Court has put stronger limits on the Commerce Clause than we've seen previously. All those liberals who laughed at that construction of the mandate will now have to consider the new parameters of the clause. If Congress wants to expand their powers, they'll have to admit that they're taxing people. Of course, that means our hopes for limitations on their power will rest on their unwillingness to pass a new tax.

Todd Gaziano of Heritage writes that there are two important silver linings in the decisions, although he finds the main decision to read the mandate as a tax as inexplicable.
Despite the Court’s error in reading the individual mandate penalty as a tax, five justices opined that the mandate, standing alone, cannot be justified under the Commerce Clause or the Necessary and Proper Clause. This is not remarkable to anyone who knows the original meaning of the Commerce and Necessary and Proper powers, but it is a serious blow to 90 percent of the legal academics and about 90 percent of Congress, since these have been the clauses used to justify so much of the modern administrative state....
The majority’s ruling on the onerous conditions attached to the Medicaid expansion is also helpful in limiting Congress’s power to bribe states into submission or to threaten them with the loss of federal revenue in a long-run federal-state program. In a fractured set of opinions that will take some additional time to untangle, a majority of justices imposed limits on Congress’s ability to threaten the denial of previous funding streams based on states’ agreeing to new funding conditions in those programs. Indeed, seven justices seemed to agree that some constitutional limitations were breached in the Medicaid expansion. This itself is a landmark ruling.
Liberal legal scholars are not going to like most of today’s constitutional rulings; their wailing will start pretty soon. In the long run, today’s constitutional rulings will be seen as an important victory in promoting fidelity to the Constitution and the ideal of limited government. The American people and their elected representatives have a lot of work to do to repeal and replace the Obamacare statute. Moreover, we still have an uphill battle to restore and preserve the written Constitution we have been bequeathed, but the Court today put some temporary brakes on our republic’s descent down an extra-constitutional slippery slope in which the federal government can control any aspect of our lives that has any imaginable impact on commerce—meaning everything.
If you were above all interested in the bill being struck down, it was mostly a loss. On the other hand, if you were more concerned about the qualitative expansion in the power of the government that the bill represented, it was definitely a win.Jay Cost agrees,

Now that Obamacare has become Obamatax, Republicans will be able to point out that Obama has broken his pledge not to raise taxes on the middle class. In fact, the mandate raises taxes on the poor. According to the CBO, the Obamatax may amount to $1.7 trillion over a decade.
Seventy-five “percent of the [Obamacare] mandate penalty… falls on Americans earning less than $120,000 a year … [so] President Obama has imposed one of the largest tax hikes in American history on the middle class,” said a statement from the Republican minority of the Senate budget committee.

Twenty-one percent of the tax increase will fall of people who earn just above the poverty level of $11,800 per individual, or $24,000 for a family of four, according to a statement from the committee’s Republicans, who are led by Alabama’s Sen. Jeff Sessions, a staunch opponent of Obamacare and big government policies.

People who earn between two and three times the poverty level will pay 25 percent of the Obamacare tax.

People who earn between three and four times the poverty level will pay 18 percent of the law’s cost.

People who earn between four and five times the poverty level will pay 11 percent of the tax bill.

The wealthiest slice of the population, those who earn more than five times the poverty level, will pay 25 percent of the taxes.
And repealing a tax requires only a bare majority of 51 to pass the Senate so repealing Obamatax will be possible. Expect to see this line pushed in every Senate race. Remember that the Democrats worked hard to pretend that the mandate wasn't a tax in order to pick up some recalcitrant votes. If they'd called it a tax, it wouldn't have passed. Now voters need to ask candidates if they will vote to uphold this tax. It will be incumbent on Republicans to explain in detail why they oppose Obamacare. The mandate was a constitutional hook for challenging the law. But the law is also bad policy. And they need to make that argument. Talk about how it will increase health care costs and vastly grow the government. Talk about the unelected board that will get to make unreviewable decisions on what can and cannot be covered and thus will influence what treatments are available to everyone. There is a lot more wrong with this law than just the mandate. Romney has his own weaknesses to making this argument, but it must be made.

Paul Ryan is the best one to make these arguments. He made them in 2010 at the health care summit and Obama had no answer to them. Mitt Romney is a smart man. Have him study the transcript of Paul Ryan's statement and memorize the key parts. In fact, I'd recommend that all Republicans start reading those talking points.
This might strengthen Paul Ryan's standing as a vice presidential candidate.