UPDATE: CBS report on Roberts' decision gives credence to the suggestion his decision was based on political political considerations!
There may be a silver lining to the dark cloud but it's too early to celebrate!
Now that the dust is beginning to settle from the Supreme Court's decision (or rather, Chief Justice Roberts' decision)[PDF] to uphold ObamaCare a few thoughts come to mind.
First, I'm not going to join bandwagon among some conservative pundits who see the declaration that ObamaCare's mandate is actually a tax as a great positive in our favor. Most of the hoi polloi who pay scant attention to this kind of news have only heard fragments of mainstream news reports that declare this decision a great victory for Obama. They don't know, or perhaps not even care, about a new tax.
Besides, anyone who has been paying attention these past years knows Obama is all in favor of taxes and like so many other campaign promises that he has broken, his pledge not to raise "one dime" in new taxes on those earning less than $250,000 has already been broken. A good example of this was the cigarette tax, one of the very first bills Obama signed, which enacted a whopping increase in taxes on smokers. That tax is especially regressive meaning that it impacts the poor and middle income earners most of all.
Justice Roberts' Decision
What I found most odd about the decision is the twisted reasoning which led Justice Roberts to join the four liberal rubber stamp justices and declare the law Constitutional.
He claimed that the law did not violate the Commerce Clause because the mandate is a tax. Yet he also had to push aside the Anti-Injunction Act which decrees that before a suit can be brought against a tax, the tax must first be paid. Since the mandate tax won't come into effect for few years that would indicate that the court should not even consider the case if the mandate is a tax. Yet Roberts unilaterally declared that the Act should not apply.
Roberts' decision also weakens the Commerce Clause instead of upholding it. What is to stop future congresses from forcing compliance with some new socialist scheme by taxing those who do not comply?
Roberts twisted the law into a pretzel like any good lawyer would on behalf of his client who appears to be Barack Obama. The question is why?
Chicago Style Intimidation
From the very beginning of the Obama Administration the President himself, as well as Democrats on down the line have engaged in a campaign to undermine the Supreme Court. The left has never forgotten or forgiven the Court for the decision in the Bush v. Gore case which ceased Gore's selective recount in Florida during the 2000 presidential election. That distrst intensified after the Court decided the Citizens United case which gave corporations the same rights to free speech currently enjoyed by left wing labor unions. Who can forget the 2010 State of the Union address where Obama lectured the Court, with the Justices sitting right in front of him, on the case. But he got that case wrong as Justice Alito pointed out when he mouthed the words "not true" [video].
Had Roberts sided with the Justices Kennedy, Thomas, Scalia and Alito and found ObamaCare unconstitutional the left was ready for an all out assault on the court. The lines of attack were already in place. MSNBC's Chris Matthews likened Roberts to a judge upholding slavery in the civil war era in the day before the decision [video]. As soon as the decision was announced Chris Matthews could not find enough nice things to say about Roberts.
Is it possible that Roberts was so concerned for the standing of the court and not wishing to be drawn into a political attack that he was intimidated into supporting the left wing view?
To answer that consider that Roberts never was part of the conservative ideological movement. He was and is a lawyer first, second and third. He may also belong to that curious group of Washington Republicans known to go along to get along and not rock the boat by compromising with Democrats. Republicans in that group value being part of the Washington social scene. They like being invited to play golf and attend the cocktail parties. Either way, Roberts may have sought to appease those who threatened war on the court. But like the Munich agreement failed to prevent Hitler from invading Poland, this decision won't stop Dems from demanding Roberts show equal flexibility in future cases.
I believe that Roberts may have been intimidated by political pressure. The Chicago Union Boss doesn't need to actually break your legs to make you comply. He just has to let you know that he can if he wants to.
The Silver Lining: The Mandate to Repeal
If there is a silver lining to this debacle it is in two parts. First, the anger that fueled the rise of the Town Hall protests and the Tea Parties which followed has returned. That emotive force, which swept the elections at federal, state and local levels in 2010 and gave Obama his "shellacking" is growing again. Properly channeled it will sweep Obama and Democrats in the U.S. Senate from power.
Had the Supreme Court struck down ObamaCare that issue in the fall campaign would have been watered down. Instead the election will be in part a referendum on ObamaCare. A big win for Republicans is a mandate to repeal ObamaCare.
And now that Justice Roberts has determined that the mandate is a tax, Senate rules will allow a vote on repeal to be done with a reconciliation process which forbids a filibuster allowing bills to pass with a simple majority.
Senate Democrats in the minority will hardly be able to complain since they used reconciliation to pass portions of ObamaCare and since the court has declared that the mandate is a tax.
There is every reason to believe that a Romney win with a GOP Senate takeover would mean the end of ObamaCare! It's our best hope!