Obamacare ruling offers good possibilities, but no substitute for a win

Generals are often accused of “fighting the last war.” After Thursday’s Supreme Court ruling upholding Obamacare, conservatives are asked to pin our hopes on the notion Chief Justice John Roberts was fighting the next war.

This is a tempting proposition. There is the fact Roberts, in the main opinion of the court, and the four dissenting justices endorsed a limit to the power Congress wields under the Commerce Clause of the U.S. Constitution. As this was the key judicial theory advanced by the law’s opponents, one that sought to halt a decades-long expansion of the meaning of “regulating” interstate commerce, that is no minor feat. It could even provide the starting point one day for further rollbacks of bad Commerce Clause precedent, starting with the awful 1942 Wickard decision that found a farmer affected interstate commerce by growing his own wheat.

There is also the fact the court’s majority decided the “penalty” for non-compliance with Obamacare’s individual mandate to purchase health insurance is really a “tax.” While this contradicts Congress’ actions and the president’s words during the 2009-10 health-care debate, it has the benefit of making it easier to repeal the law. As a budgetary matter, this “tax” — and Obamacare’s other taxes and spending — should be subject to the Senate’s reconciliation process, to which the filibuster does not apply. So, there’s no requirement for 60 votes in the Senate to remove the heart and guts of the law, just a simple majority.

And there is the fact that Roberts’ surprising vote on Obamacare averted the torrent of purely partisan criticism Democrats and liberals were set to unleash had a majority of the court struck down the law, accusing Roberts and his colleagues of — wait for it — partisanship. His court’s integrity intact, perhaps Roberts will be freer in lower-profile future cases to strike blows for the causes of federalism and limited government.

All these thoughts are pleasing to the conservative mind.

But if Roberts’ ruling can cite Benjamin Franklin’s aphorism about the certainty of death and taxes, allow me to caution against too rosy a view of his ruling with another saying: A bird in the hand is worth two in the bush.

Maybe the Roberts court will reinforce federalist principles in future cases. Then again, maybe the facts and circumstances of these future cases won’t cooperate. Or maybe the cases won’t emerge before the Commerce Clause-limiting wing of the court changes for the worse: Antonin Scalia is 76, Anthony Kennedy turns 76 this month, and there are at least even odds Barack Obama will be making court appointments past their 80th birthdays.

Speaking of elections: Maybe Mitt Romney will win and have at least 50 GOP senators (plus his vice president) to pass a budgetary bill by reconciliation. Maybe not. The presidential election and key Senate races look close, and four months is an eternity in politics.

And maybe, just maybe, the same Democrats and liberals who thought partisanship was the only reason the court could strike down Obamacare will look back, when a future case is decided in favor of federalism and limited government, and say, “This stinks, but hey — Roberts was with us on health care back in 2012. So it’s cool.” Or maybe their reactions will be just as vicious and plainly partisan as their blowback to an anti-Obamacare decision promised to be.

Possible future good is a consolation for Thursday’s loss, but it’s no substitute for a win.

(Note from Kyle: This is my column for the Sunday AJC. As anyone who read my posts Thursday can tell, I have been going back and forth about the impact of the Obamacare ruling. Consider this column a refinement of my opinion: There are some good things that could come out of the ruling, but they are by no means guaranteed.)

– By Kyle Wingfield

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677 comments Add your comment

md

June 29th, 2012
6:04 pm

“Generals are often accused of “fighting the last war.” After Thursday’s Supreme Court ruling upholding Obamacare, conservatives are asked to pin our hopes on the notion Chief Justice John Roberts was fighting the next war.”

Think of them as battles Kyle……it’s shaping up to be a long war……..there is a difference.

md

June 29th, 2012
6:14 pm

Interesting that the IRS will be the ones in charge of collecting the penalties……ever looked at that closely?

The IRS………theirs!

Bob Baldwin

June 29th, 2012
6:17 pm

What are the chances corporations wil turn away from States that decide to NOT implement this program?

Already, before this started, companies were dropping insurance due to the costs.

Turn off even that that is already in place and costs will go up more. ERs will become the primary provider for even more people and they won’t be able to pay.

InAtl

June 29th, 2012
6:19 pm

Jay Carney was telling reporters today that Obamacare involves a penalty, not a tax. They can’t have it both ways, but they keep trying to fool the American people.

Bob Baldwin

June 29th, 2012
6:24 pm

InAtl

How much will your tax bill be?

InAtl

June 29th, 2012
6:26 pm

Don’t know yet, Bob. Do you? If I elect to drop my insurance and not carry any, are you saying IRS won’t care? Or are you saying that SCOTUS was wrong about it being a tax?

Bob Baldwin

June 29th, 2012
6:34 pm

Don’t know, but that’s a moot question because I won’t be dropping my insurance. I also believe you and probably all of the posters on this subject (all the blogs) are intelligent enough to keep their insurance.

More people will opt in than opt out.

Michael H. Smith

June 29th, 2012
6:45 pm

Mitt wins he will be the one making those court appointments Kyle. You can bet he’ll not appoint another Ruth Joan Bader Ginsburg or Benedict Arnold Roberts Jr. to the court.

The only good thing to pin hope on in this thing is seating a new conservative majority in Congress that will pass laws to “extremely limit” the taxing powers of Congress and review limits, set more restrictions on all the powers of the executive branch. An amendment that would restore Federalism to its once glory of a weak central federal government would probably be too much to ask for… However one can always wish.

Meanwhile, I’m with the minority opinions in this case and pray for five more Scalias’ on the Supreme Court. The thought of these socialist libs standing at the airport with one way tickets in hand is better than getting a Chris Mathews leg tingle. :lol:

One other point… Your lying bum obumer can’t say he didn’t break his campaign promise not to raise taxes on the middle class and the poor now Comrades

Flip done flopped?!

Yeah, you darn betcha he did. BIG GUB’MENT TIME!

Just saying..

June 29th, 2012
6:46 pm

“Or maybe their reactions will be just as vicious and plainly partisan as their blowback to an anti-Obamacare decision promised to be.”

Or as others, here, turned out to be…

Bullet County

June 29th, 2012
6:49 pm

Kyle, the so-called conservative “mind” is a figment of your imaginations.

Michael H. Smith

June 29th, 2012
6:53 pm

Just saying..

June 29th, 2012
6:46 pm

Yeah vicious and plainly partisan like yours you phony hypocrite and those of your dirt bag ilk!

Don’t play the noble gentry now clowns, we on this blog remember all that CRAM IT DOWN THEIR THROATS DONKEY DUNG!

Uh Oh

June 29th, 2012
6:55 pm

Michael

Is your God a Republican or maybe conservative?

For all you know he or she wants the liberals on the court…… strange he would bless or want Scalia’s but have no “power” to keep the lefties off the court

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

June 29th, 2012
6:56 pm

Have patience, my man.

Michael H. Smith

June 29th, 2012
6:56 pm

Bullet County

June 29th, 2012
6:49 pm

When we on the Conservative side regain power I’ll remind you it is all just a figment of your imagination we really aren’t irradiating over 100 years of peegressive socialism from Woodrow Wilson until lil barry obumer

Uh Oh

June 29th, 2012
6:58 pm

Kyle

While not in agreement with much of your assessment, it is still a very well thought out and written article

Thanks

Michael H. Smith

June 29th, 2012
7:01 pm

Uh Oh

June 29th, 2012
6:55 pm

My God is my business and HE really is not into favoring socialist liberal things like Abortion and Homosexuality if you can understand it, though I doubt you can.

Uh Oh

June 29th, 2012
7:04 pm

Michael

Thanks for the reply. I missed in the KVJ Bible were it spoke of Supreme Court Justices, Republican / Democrat, liberal /conservative…..

Maybe you do not use that bible or are not even Christian but adhere and follow another faith

No problem, I was just asking

Shalom

Michael H. Smith

June 29th, 2012
7:11 pm

Uh Oh

June 29th, 2012
7:04 pm

Yeah you missed alot obviously including your inadequate ability to talk theology with me.

God ordains those in power for his purpose doesn’t mean I got to like them.

Now ignorant person go get your KJV and try to make abortion anything less than murder in the eyes of God or homosexuality a pleasing thing to God.

PS. No I don’t claim to be a Christian, because I actually know what that word means and I can tell you that you are not one either.

Mandingo

June 29th, 2012
7:15 pm

Johnny Rebs vs Americans. Lincoln should have let the slave states sucede from the Union . Barred any economic ties with them and watch them self destruct and kill each other off . It still may work.

Just saying..

June 29th, 2012
7:17 pm

Michael H. Smith
June 29th, 2012-6:53 pm: Just saying.. June 29th, 2012
6:46 pm”Yeah vicious and plainly partisan like yours you phony hypocrite and those of your dirt bag ilk!
Don’t play the noble gentry now clowns, we on this blog remember all that CRAM IT DOWN THEIR THROATS DONKEY DUNG!”

Mike, do you believe you present the best Conservative response to the Supreme Court ruling?

jconservative

June 29th, 2012
7:18 pm

“His court’s integrity intact,…”

Kyle,
I am not sure that “court’s integrity” is necessarily the case with the Obamacare decision. Roberts has been reluctant to override the decisions of duly elected representatives of the people. The Obamacare bill was passed by duly elected representatives of the people and signed into law by a duly elected president.

See CJ Roberts dissenting opinion in Miller v Alabama of 6/25/12: In that dissenting opinion he noted that in “…United States v. Harris, 106 U. S. 629, 635 (1883) (courts must presume an Act of Congress is constitutional “unless the lack of constitutional authority . . . is clearly demonstrated”)…. And to that case specifically he noted that: “Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole.”

I believe that the guiding philosophy of the CJ is that the Court must be reluctant to override the wishes of the people, expressed through their elected representatives, if a constitutional remedy is available.

I am not a big fan of having the Court override the votes of 219 members of the House, 60 senators and a presidential signature, all elected by the people, by a 5 – 4 decision of 9 people appointed for life. They have no realistic accountability.

Uh Oh

June 29th, 2012
7:20 pm

Michael

It is ok. You can make the inferences, etc from any religious texts you like. Your right. I just asked a question. It is a public blog.

As for abortion, etc, those are your words, I haven’t mentioned them.

So do carry on with your uniformed diatribe if that works for you

Michael H. Smith

June 29th, 2012
7:21 pm

brucie here’s a little tid bit for you dum dum.

The South should have made the North secede from the union as it wanted to do some 35 years before the South did.

Don’t even try that Oh Holy North crap with me. The North signed off on slavery remember?hmmm..
Northerners owned slaves as well, even free black women owned black men slaves and if they caught’em looking at a woman the wrong way they’d say… “Your butts on the block boy!”

Meaning they were going to be sold.

Michael H. Smith

June 29th, 2012
7:24 pm

Uh Oh

June 29th, 2012
7:20 pm

You are the uniform party, I didn’t initiate the “inferences” as you did, so continue on though I’m not interested in your lackluster entertainment.

Uh Oh

June 29th, 2012
7:26 pm

carry on Crying Mike

Pray for Scalias……..

:-)

Rafe Hollister, suffering through Oblamer's ineptocracy

June 29th, 2012
7:31 pm

Kyle, good analysis, but I do not give Roberts credit for being that brilliant or for seeing this as an opportunity for future benefits. I think his motivation was simple, his legacy and his courts legacy. He traded his backbone in an effort to appease his critics and insure his legacy.

No rational individual would make a tortured detrimental decision of this magnitude, hoping that a hundred future things will line up in order, so your brilliant plan will work, in the long run, to benefit America.

Michael H. Smith

June 29th, 2012
7:32 pm

Reading comprehension is not a strong suit I see. No serious moaning on my part, the Scalias’ is a wish.

I’m just waiting for my turn, when you’ll start braying jackass. hee haw!

Michael H. Smith

June 29th, 2012
7:34 pm

Benedict Roberts went out of his legal way to make that trade Rafe.

Uh Oh

June 29th, 2012
7:35 pm

“when you’ll start braying jackass. hee haw!”

Why would I imitate someone as yourself?

hahahaha

Get real, son

Michael H. Smith

June 29th, 2012
7:40 pm

Yeah do come soon back child, Papa will be waiting for you and brucie :lol:

End of the month maybe?

Bookman is probably getting worried about you two, best run along now.

Bye uh oh dolt.

Michael H. Smith

June 29th, 2012
7:52 pm

Let’s see how many democrats will vote raise taxes when the Republicans force their hand Kyle?

Like those who expressed they might not go to the democrat convention? :lol:

You might be right Kyle, this may have woke a sleeping giant.

Ernest T Bass

June 29th, 2012
7:55 pm

You might be right Kyle, this may have woke a sleeping giant.

LOL. Meanwhile Obama is up another couple points in the polls.

Universal Healthcare is here to stay. Get over it.

Obama won. You guys lost.

Rafe Hollister, suffering through Oblamer's ineptocracy

June 29th, 2012
7:59 pm

Ernest T

Pains me to have to school a fellow Mayberrite, but Oblama won. America lost.

getalife

June 29th, 2012
8:03 pm

You lost health care and fast and furious is over.

Your party needs a reckoning and President Obama is the man that will do it again.

Yes, he can.

Michael H. Smith

June 29th, 2012
8:04 pm

Your mistake clown, we guys have moved on to the next battle already but you can keeping fighting the other one while we guys kick your donkey butt.

Meanwhile dems say go on the tax offense. I think we got’em on this one Kyle. The last thing Americans want right now is more tax when so many have not even got back to where they were economically before obumer took over. Now obumer and the democrats are caught in his lie. They’ve raised our taxes. I hope you’ll do a blog on all the taxes that will result from obumercare, Kyle. Oh that’s before you outline how many jobs will not be created because of this so called “affordable act”? :lol:

killerj

June 29th, 2012
8:05 pm

Once again your screwed people,you reap what you sew fool,s.

Hillbilly D

June 29th, 2012
8:07 pm

Lincoln should have let the slave states sucede from the Union . Barred any economic ties with them and watch them self destruct and kill each other off .

But Lincoln himself said that if he let the South go, grass would grow in the streets of New York City.

Skip

June 29th, 2012
8:10 pm

Is Kyle this desperate for comments? Does he have any rules at all?I don’t think it’s right that he lets you folks drive this Smith guy into a nervous breakdown.

Michael H. Smith

June 29th, 2012
8:13 pm

New York was invested with “Copperheads” during that time D: The term Copperheads meant Southern sympathizers.

Oh and don’t forget that parts of New York remain under the same voting rights restrictions imposed on the South.

getalife

June 29th, 2012
8:15 pm

The dems are going on the offense on the economy and jobs.

Try acting like Americans for a change.

Praise our President for this major accomplishment that Presidents have been trying to do for decades.

Hillbilly D

June 29th, 2012
8:15 pm

Michael H

NYC financiers were dependent on Southern cotton; that’s how they made their money.

Michael H. Smith

June 29th, 2012
8:16 pm

Skip

June 29th, 2012
8:10 pm

Oh your compassion… how touching but I don’t need it. Maybe Kyle should protect my attackers as they do seem to be getting beat-up the worst. Help’em Kyle.

Bob Baldwin

June 29th, 2012
8:24 pm

Michael H. Smith

I was going to say something ugly, but let it suffice to say that you aren’t a good representative of the conservative position.

You aren’t helping.

Michael H. Smith

June 29th, 2012
8:24 pm

Hillbilly D

Yeah but they feared the South was gaining to much of an economic advantage. This is a heavy subject that goes all they way back to England. The divisions and the resulting war was more predictable than rain. A book by the title: The Three Cousin’s War treated the history of this entire affair very well. I’m afraid many of those same old harbingers do linger, all that has changed is the disbursement of the people over the face of the present geography, our political polarity really hasn’t.

Michael H. Smith

June 29th, 2012
8:26 pm

Bob Baldwin

June 29th, 2012
8:24 pm

Probably more than you but I’ve good reason to doubt you’re sincerity anyway.

Bob Baldwin

June 29th, 2012
8:28 pm

Michael H. Smith

I was going to post something ugly, but let it suffice to say you aren’t helping the conservative cause.

md

June 29th, 2012
8:29 pm

“Universal Healthcare is here to stay. Get over it.”

Considering this entitlement program will now cost 1.7 trillion (cbo, which more than likely is on the low side) over the next decade, and we are currently 16 trillion in debt, one best hope the next course of action is to reduce that debt or this program along with all the others won’t much matter………

Greece was able to get plenty of programs on the books……….it’s the paying for them part that is the problem. And last I checked, we aren’t doing to well with paying for the ones we had and you folks are applauding the addition of another one………..

Bob Baldwin

June 29th, 2012
8:30 pm

Michael,

My computer isn’t cooperating, but I’m not trying to repeat myself. Once is enough.

Just saying..

June 29th, 2012
8:30 pm

Mike and his self-proclaimed partner, Kyle. How about a photo, guys?

Michael H. Smith

June 29th, 2012
8:32 pm

That is your opinion Bob, whatever is your ugly cause.

Oh by the Bob, how many democrat hold statewide office in Georgia?

Looks like my damaging efforts helped more than you probably like?