Obamacare upheld: What it means now and in the future

Challenging Obamacare on constitutional grounds was never what anyone on the right wanted to rely on as a Plan A. “Repeal and replace,” the mantra of conservatives since Congress approved the health-insurance overhaul in 2010, is a high bar requiring the election of a president and congressional majorities dedicated to taking Obamacare off the books and passing more sensible reforms in its place. But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear.

The irony is that we cleared the higher bar, and have nothing to show for it.

Do not confuse this for spin: Barack Obama and the Democrats won a clear policy victory today in seeing the court uphold their health law. There’s no denying that. Any other outcome would have been a debacle for them. This is the opposite of a debacle. That would be a victory.

That said, five of the court’s nine justices just agreed that compelling individuals to enter the market for a private company’s product does not fall within Congress’ power to regulate interstate commerce. This is the very idea to which then-Speaker Nancy Pelosi responded, when asked about it by a reporter two years ago, “Are you serious? Are you serious?” So, this is a remarkable moment given the last 80 years of Supreme Court jurisprudence and an important limit on federal power. In those terms, it looks like a legal win going forward for conservatives.

Unfortunately, Chief Justice John Roberts sided with the court’s four liberal justices and bought the Obama administration’s tortuous argument that the consequence for failing to comply with the mandate to buy health insurance was a “tax” — even though the president himself, during the debate about the law, repeatedly denied it was a “tax”; even though, as noted in the main dissent to the ruling, Congress rejected a version of the law that called for a “tax” as a penalty; even though Congress chose to use the word “tax” elsewhere in the law but not in reference to the penalty for failure to meet the mandate; even though the court’s majority decided it wasn’t a “tax” for purposes of the Anti-Injunction Act; and even though, again from the dissent, there are multiple instance of the federal government’s using its taxing apparatus to collect penalties that cannot possibly be considered “taxes.”

Judge for yourself whether it was judicially modest of the Roberts court to find any avenue possible to defer to the legislative branch, or judicially immodest to ignore Congress’ contradictory words and deeds in locating that avenue somewhere down a rabbit hole. No prizes for guessing where I stand.

My initial reaction to the taxing-power argument was that it pretty much offset any gain from the newly defined limit of Congress’ Commerce Clause powers. I am still not comforted by the court’s reasoning that Congress can tax someone for not buying something. And I am dismayed that Roberts not only justified this reasoning by comparing “not buying insurance” to “buying gasoline” or “earning income,” but also suggested a new tax Democrats could constitutionally try: a $50-per-household tax for not having energy-efficient windows. (Talk about getting kicked while you’re down.)

The more I think about it, however, all that is no more dismaying than knowing Congress can also decide to tax as much of a person’s income as it wants. The only thing standing in the way is the will of the people.

Which brings us to the biggest takeaway from today’s ruling. If Obamacare is to be reversed, it will have to be done by elected officials acting on the will of the people.

And that means it may not be a political victory for Obama.

It might be, of course. The prospects of re-electing Obama and/or keeping a majority in at least one chamber of Congress, and thereby keeping the law on the books, must be less daunting than trying to enact a new, similar (or even more far-reaching) health law. And while Obamacare is unpopular, there is a chance public opinion will shift in its favor now that the court has ruled. If so, that would boost Obama.

But there are other reasons it may hurt him: The intensity of Obamacare opponents will ratchet back up — remember how fired-up people were during the townhall meetings of 2009? If they have any political acumen whatsoever, Republicans will remind voters over and over again that Democrats sold the law as one thing (not a tax) only to win in court by saying something else (it’s a tax). Expect to see clips like this one and this one in GOP ads early and often.

Of course, the big question will be whether Mitt Romney is the one to capitalize on an issue like this, given his record on health reform (”Romneycare”) as governor of Massachusetts. I see two good ways for him to do it: First, frame the issue in part as an element of tax reform, and the need to get rid of a federal tax code that seeks to compel Americans to behave certain ways in exchange for one that gets government out of private individuals’ personal decisions and taxes only as much as it needs, without prejudice.

Second, to lend credibility to his promise to lead efforts to repeal Obamacare and replace it with something better, Romney should choose a running mate who can speak credibly about the issue. And in my mind, no one fits that description better than Louisiana Gov. Bobby Jindal.

– By Kyle Wingfield

Find me on Facebook or follow me on Twitter

512 comments Add your comment

retiredds

June 28th, 2012
3:43 pm

Kyle, replace is a ruse. The only thing R’s want is repeal, period. Whether you agree or not that’s the way I see it. (and I am not alone in this line of thinking).

St Simons - we're on Island time, mon

June 28th, 2012
3:44 pm

oh, lawd, you ought to see the boatloads, i mean oceanliner loads
of doctors piled up 16 deep on the docks waitin to ‘leave the country
down here, so they can practice their love on women in a freeeee
innerprise kuntry’…….oh wait….

Jefferson

June 28th, 2012
3:45 pm

You don’t have to get all mad about it.

retiredds

June 28th, 2012
3:52 pm

“With regards to the mandate, the individual responsibility program which I proposed, I was very pleased to see that the compromise from the two houses includes the personal responsibility principle,” Romney said in the 2006 about the MA individual mandate. “That is essential for bringing healthcare costs down for everyone and getting everybody the health insurance they deserve and need. So I was very, very pleased with that development.”

jconservative

June 28th, 2012
4:01 pm

The Court confirmed Congress has the authority to “regulate” commerce, but denied that Congress had the authority to “create” commerce to regulate.

“Which brings us to the biggest takeaway from today’s ruling. If Obamacare is to be reversed, it will have to be done by elected officials acting on the will of the people.”

And this is the way it should be done. As the CJ noted “It is not our job to protect the people from the consequences of their political choices.” The people made a choice and elected a Democratic congress and a Democratic president. And they got Obamacare. The people have an easy remedy if they do not like the product.

It is evident from several decisions that this CJ is not quick to overrule the policies of government instituted by the duly elected representatives of the voters. And on that I agree with him.

JDW

June 28th, 2012
4:01 pm

@Kyle…of course the Republicans could always choose to stop this Party of No nonsense and actually come to the table to talk about actually creating solutions.

But I guess they would rather continue to rail against a Republican idea implemented by a Democratic President.

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
4:03 pm

the big question will be whether Mitt Romney is the one to capitalize on an issue like this, given his record on health reform (”Romneycare”) as governor of Massachusetts…

mwuahahahahahahahahahaah

Jefferson

June 28th, 2012
4:04 pm

Will the GOP now focus and stop the war on women or have they not learned ?

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
4:06 pm

Sounds like Kyle is saying that, outside of getting it repealed, the Republicans ought to not bother pursuing a better plan….

Like they were ever thinking of one in the first place? Giving his people a nice pass….

Aquagirl

June 28th, 2012
4:07 pm

remember how fired-up people were during the townhall meetings of 2009?

Who could forget “hands off my Medicare?” And when they threatened to set their hoverounds to ramming speed…man, that was scary.

Kyle Wingfield

June 28th, 2012
4:07 pm

jconservative @ 4:01: If you’re referring to this sentence, “But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear,” the “it” refers to Obamacare. Not the ability to regulate interstate commerce generally.

Kyle Wingfield

June 28th, 2012
4:09 pm

Finn @ 4:06: Right, that’s why I keep saying “repeal and replace” … because I only want “repeal.”

Uh huh.

retired early

June 28th, 2012
4:09 pm

Kyle

You sure get riled up when you lose.
If you take a step back and look at the “big picture”, this law is the best way to stop the out of control cost of health care because it requires “everyone” to pay.
Why are you opposed to making 30 million freeloaders pay their fair share…sounds like a mainstream GOP idea to me. Oh, and don’t give me that “free country” crap as your rationalization.
I guess if “W” had proposed the same law you would all over it.

GT

June 28th, 2012
4:11 pm

The point you have always lost in this is “we” Obama did win the election. And if you ever win a majority again I think it only right you rule the country, you are the people’s choice. What you have done in the face of a majority, not yours, is to be destructive and put obstacles in place to make it almost impossible to rule as a majority. You have acted as terrorist distorting the truth. Even your own Judge Roberts couldn’t follow you upside down reality to agree with you.

It has always been about the vote in this country as long as you pass legal laws. I think watching the flavor of the week in your primary your people don’t know what they want from week to week. I am sure Romney is losing ground with that crowd as we speak. But get them out, light a fire in those tents, block traffic with old people protesting like they are not responsible for this mess in the first place. And if you win, unlike you, I will salute the president of this United States and I will never call him a liar at a state of the union speech or any other common disrespectful childish behavior. Things like today make me proud to be an American, and you people need to find more people like Roberts to fix your party, instead of Newt and Herman. It is called character get that and you start fixing the Republican Party.

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
4:13 pm

Kyle you can say “replace” until the cows come home. Just like Romney saying “we will fix the economy” with every breath. Until you have something substantial in hand (maybe an outline for starters??) you are just blowing smoke.

Love me some Reagan

June 28th, 2012
4:18 pm

Kyle and the rest

“Let not your heart be troubled”

Sean Hannity

Michael H. Smith

June 28th, 2012
4:20 pm

Yes unfortunately Chief Justice Benedict Arnold Roberts did a legal dance and worse is what this little jig actually reveals: Under the tax powers of Congress there are no limits on the fascist imperial powers of the Federal Government.

I guess now we truly are all “Comrades”. The former Constitution is a worthless fools ideal that cannot protect anything from the fascist imperial Federal Government’s powers to tax you or I into submission. Best get use to reciting the Manifesto or face going to the Marxist internment camps for retaining and indoctrination as a loyal citizen of the U.S.S.A.

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
4:21 pm

Looks like 4 more years of Romney on the campaign trail……sigh.

davetv

June 28th, 2012
4:22 pm

will someone explain to me why an insurance company would decide to lower their rates simply because everyone is now forced to buy a policy? What is their incentive? If the govt forced everyone to buy a car, would the price of cars go down? I always thought that when the demand for a product goes up, the price for that product will go up. Or, does that concept only apply to everything except health insurance?

Brosephus

June 28th, 2012
4:23 pm

Kyle

You, personally, may want repeal and replace. There may be many other voters who agree with you as well. Those in DC that have to make that ultimate decision, however, do not necessarily agree with you. Politico had a report the other day that quoted congressional insiders as saying the GOP had no plan to replace the ACA anytime now or in the near term had it been declared unconstitutional. That said, I don’t see how a ruling change will suddenly make a cogent and viable plan appear.

If/When a plan is presented, I’m willing to listen to see if it’s worth spending the effort to repeal the ACA. I don’t like the latest plan, nor did I like the system it replaced.

Love me some Reagan

June 28th, 2012
4:24 pm

Finn

Be the 1st to buy your “Didn’t work in 2012 see you in 2016″ Romney bumper stickers. He might set the record for the one who tried and tried…….

jconservative

June 28th, 2012
4:27 pm

Kyle Wingfield 4:07 pm jconservative @ 4:01: If you’re referring to this sentence, “But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear,” the “it” refers to Obamacare. Not the ability to regulate interstate commerce generally.

No. The CJ gives a pretty good constitutional history of the Commerce Clause. Then he rules that Congress cannot use the Commerce Clause as justification for the mandate, that they could not create commerce where it has not previously existed. So my statement that “The Court confirmed Congress has the authority to “regulate” commerce, but denied that Congress had the authority to “create” commerce to regulate.

Before the passage of Obamacare there was no health care insurance interstate commerce by millions of people. Obamacare creates commerce by forcing millions of people to buy an insurance product and enter into interstate commerce. The CJ says no can do.

I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...

June 28th, 2012
4:27 pm

This Election Just Became About Obamacare

And what is to like about it?

buh bye obozo

Finn McCool (The System isn't Broken; It's Fixed)

June 28th, 2012
4:28 pm

davetv,
Sick people use health care alot more often than healthy people. If only the sick people bought insurance (and insurance companies couldn’t turn them down) then insurance companies would need more money to meet all the demands.

If you force healthy people to buy insurance (people who spend less on health care, see the doctor less, etc), then all their premiums help to counteract all the expenditures they are making for the sick people.

Sick people would be expenses for insurance companies while healthy people would be income for insurance companies..

curious

June 28th, 2012
4:30 pm

The Supreme Court was great when they okayed Citizens United.

Just goes to show you that 1 foul up erases 500 attaboys.

Dusty

June 28th, 2012
4:30 pm

hmmmmm “Let not your heart be troubled”. 4:18

Must be talking about liberals here . Just read most of the last ten or twelve comments. All happy that the Republican Party has been “corrected” and then “squeal like a pig” and other compliments. Aquagirl even got in a joke about someone disabled in a Hoveround.

Nothing like liberal pleasure to bring out the best.. They practiced their “best” for eight years with Bush.

GT

June 28th, 2012
4:32 pm

How do you reach this Federal Government power conclusion. I watched Bush practically kidnapping Americans from their families and forces them to serve multi terms in that thing you rigged up to be a war. You are hell bent on controlling a drug trade even if you have to kill every other body in this country you don’t lock up to do so. And only you go into a citizen’s bedroom and won’t allow wedding, something you put in the dumpster at record breaking rates, you respect it so much yourselves. Look at yourself mister. You are far more intrusive than what you worry about, and you will lie and cheat and kill to get back in power so you can make someone else miserable.

Michael H. Smith

June 28th, 2012
4:33 pm

I’m glad for the moment that WE do get to decide who goes to Washington DC to make those decisions Kyle. The entire democrat party and everything that identifies with it can go to HELL and for my part, I will send as many of them direction as I can with my vote against them from now until the end of eternity.

Love me some Reagan

June 28th, 2012
4:33 pm

“buh bye obozo”

Which polls and electoral college projections are saying that?

hahahahahaha

Dusty

June 28th, 2012
4:34 pm

FINN

You got the KEY WORDS right. You said “FORCE people to buy insurance!”

What else you want the government to FORCE us to do?

Michael H. Smith

June 28th, 2012
4:35 pm

How do you “NOT” reach this Federal Government power conclusion?

The rest of your horse shid comment is useless personal crap!

Love me some Reagan

June 28th, 2012
4:37 pm

Give it up for the Supremes

p://www.youtube.com/watch?v=LRjCqaX2IvQ&feature=related

Everyone crying, yet no one is saying that more appellate courts than not decided it was at minimum partially constitutional. Right, Kyle?

Why no mention of one of Robert’s mentors I think who is on the DC court? What was his ruling?

Aaron Wemple

June 28th, 2012
4:37 pm

The more that we the people let them play, the more that we the people pay for, and suffer from corruption.

Look harder my dear friends. If you were a previous attorney, now president, wouldn’t you create a whole new health care market for all of your attorney friends to practice in if you could? Or, God forbid, let guns walk if it increased your business? This isn’t a political issue. Politics is a rouse. These are legal malpractice issues. Oppression and corruption at it’s ‘finest.’

The attorney clan will forever benefit from the recent Supreme Court Health care decision. And we the people will forever pay for it all, and suffer from it all. Or else risk going to jail. Or else Doctors fighting with insurance companies. Or else insurance companies & doctors fighting with patients. (Which all helps their business.) A win-all for them. But a loose-all for the rest of us.

They are the 0.3%-ers controlling 99.7% of the rest of the population. By politics, policies, fear, or flattery. Whatever it takes to make them a buck or a big ego!

We the people have now become slaves to one man’s ego!

Citizens for an Upright U.S.A. against official corruption.

See the real Head of Government at uprightusa.org under the link: LEGAL DEVELOPMENT and then the link THE REAL THREE BRANCHES OF GOVERNMENT

GT

June 28th, 2012
4:37 pm

Go get em tiger! Personally I think you just lost the election, maybe forever. You did it to yourselves, but for a while I thought you guys were going to get away with it. You should have never allowed Roberts all that education, you let one out of the box and the whole thing goes to hell.

John

June 28th, 2012
4:39 pm

In upholding the individual mandate, the Supreme Court sided with a Republican principal. It was a conservative idea since 1989. It was only in 2009, during the health care depate, that Republican abandoned their own idea of the individual mandate.

http://www.foxnews.com/politics/2012/06/28/individual-health-care-insurance-mandate-has-long-checkered-past/

Notice the source of this article.

Dusty

June 28th, 2012
4:40 pm

And there’s GT @ 4:32 , anti-war, anti-protection, anti-bedroom , pro drugs, etc etc etc. and…….

Worrying about BUSH still!….Standard outdated liberal procedure…..

AmVet

June 28th, 2012
4:42 pm

Get used to this feeling, you fake conservative corporatists.

The forecast for the rest of this year is ………………………………….. pain!

AmVet

June 28th, 2012
4:43 pm

Dusty, pipe down and go get a Triple Whopper and some super-sized fries. (And a Diet Coke!)

You’ll feel better, even if your arteries won’t…

Michael H. Smith

June 28th, 2012
4:43 pm

Hang around chump, your time is long over due and the loser circle was made for you and your ilk.

I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...

June 28th, 2012
4:44 pm

And within less than four hours of the decision, the presumptive nominee’s (Romney’s) campaign had raised $1 million from online contributions.

And not one wedding gift.

Love me some Reagan

June 28th, 2012
4:45 pm

Michael @ 4:43

You must be looking at a mirror and talking to yourself

It is ok, just don’t answer back

Michael H. Smith

June 28th, 2012
4:45 pm

Don’t do it Dusty, it’s another liberal tax ploy.

Streetracer

June 28th, 2012
4:46 pm

So basically the court has said that the government has the power to tell me what brand of bread, or car or whatever I can buy?

Michael H Smith

June 28th, 2012
4:47 pm

Love me some Reagan

June 28th, 2012
4:45 pm

I’ll be talking in November and you will still be reading what I write. :)

AmVet

June 28th, 2012
4:48 pm

So basically the court has said that the government has the power to tell me what brand of bread, or car or whatever I can buy?

Only in Republispeak.

But not in English…

Michael H. Smith

June 28th, 2012
4:50 pm

So basically the court has said that the government has the power to tell me what brand of bread, or car or whatever I can buy?

Yep, that is the short version, minus the long taxing you into submission details.

Love me some Reagan

June 28th, 2012
4:50 pm

Guess the choice to hold the contempt vote for Holder along with what was a slam dunk rebuke of Obamacare turned out to be nothing more than a dud

Streetracer

June 28th, 2012
4:51 pm

AmVet:

If the government tells me I have to buy insurance, why can’t they tell me what else I have to buy?

Love me some Reagan

June 28th, 2012
4:52 pm

Michael

Wrong as you may be , talk on my man, talk on

Aquagirl

June 28th, 2012
4:52 pm

the court has said that the government has the power to tell me what brand of bread, or car or whatever I can buy?

The official scaredy-con meme is broccoli.

Try to keep up.