Skip to comments.Obamacare Survives, but Political Playing Field Has Changed
Posted on 07/02/2012 5:23:06 AM PDT by Kaslin
The Supreme Court's 5-4 decision upholding the Obama administration's health care legislation was a victory for the president, his administration and his party. Their most ambitious legislative achievement has not been nullified, and they are not left in obvious disarray.
But it is only a partial victory and in some ways not a victory at all, both in the short run electorally and in the long run in terms of the constitutional order.
Politically Obamacare, as its critics call it, remains highly unpopular. It's possible that the court decision will boost its support, but unlikely.
Most voters want this law repealed. Mitt Romney and the Republicans want to repeal it. Barack Obama and the Democrats want to preserve it. It's not a winning issue for the incumbent.
Constitutionally, many conservatives are unhappy that Chief Justice Roberts and the four justices generally considered liberal voted to uphold the mandate to buy health insurance as a tax, which Congress is clearly empowered to levy.
But the fact remains that a majority of five justices, including Roberts, also declared that Congress' power to regulate commerce does not authorize a mandate to buy a commercial product. This will tend to bar further expansion of the size and scope of the federal government.
Moreover, the Constitution's limits on congressional power have now become, for the first time in seven decades, a political issue. They're likely to remain one for years to come.
This would not have been true had not the constitutional case against the mandate been advanced by Washington lawyer David Rivkin, Georgetown law professor Randy Barnett and many others.
They did not quite prevail in the Supreme Court, but they changed not only the legal but also the political debate in a way almost no one anticipated three years ago.
Unhappy conservatives grumble that Congress can get around the declaration that a mandate is beyond Congress's enumerated powers by labeling it a tax -- or just by relying on five justices declaring it one.
But there's usually a political price to pay for increasing taxes. That's why Barack Obama swore up and down that the mandate was not a tax. It's why Democratic congressional leaders did not call it one.
Roberts' decision undercuts such arguments, now and in the future. Members of Congress supporting such legislation will be held responsible, this year and for years to come, for increasing taxes.
And the Constitution's provision that tax bills must be originated in the House of Representatives means that the party controlling the House can effectively block such measures. That will be an argument for Republican congressional candidates for the indefinite future.
It should not be forgotten that the Supreme Court did overturn part of the Obamacare legislation, the provision allowing the federal government to cut off states from all Medicaid funding if they refuse to vastly expand Medicaid eligibility as the legislation requires.
Here, another novel legal argument, advanced by Vanderbilt law professor (and my law school classmate) James Blumstein, found favor with a majority of justices. The idea is that Congress can't use the leverage of partial federal funding to force the states to increase the size and scope of government.
This seems like a principle that could work powerfully against big government policies. Medicaid has been vastly expanded over the years in this manner. Now the Court seems to be saying that that game is over.
The court's decision elicited sighs of relief from the White House. The president's entire administration is not in disarray.
But the basic assumptions that he brought to office have proven unwarranted. Obama followed the New Deal historians in portraying history as a story of progress from minimal government to big government and in arguing that economic distress would make Americans more supportive of big government policies.
The unpopularity of Obamacare and the stimulus package have proven the latter assumption wrong. Most Americans are skeptical about the supposedly guaranteed benefits of centralized big government programs.
And history does not move in one direction toward big government, even if it did from 1929 to 1945. Mercantilism was replaced by free trade in the 19th century, New Deal regulation by deregulation in the 1970s and 1980s.
The Supreme Court's decision, while upholding Obamacare, tilts the legal and political playing field away from big government more than anyone anticipated three years ago, and probably for years to come.
Welcome to Obvious-Land, Mister Barone.
Barone is usually spot on with his analysis. I sure hope he’s right with this one.......
Republicans need to go on offense on this. Where are the ads to counter the tax-paid, pro-Obamacare ads aired by the regime????
Obama Leads Romney In Polls Of Ohio, Florida and Pennsylvania
Posted: 06/27/2012 9:18 am Updated: 06/27/2012 10:29 pm
Romney is a terrible candidate. Obama should be getting creamed in the polls. I am sick of the republican party shoving these losers on us! All I can do is hope for a mutiny at the convention.
“The idea is that Congress can’t use the leverage of partial federal funding to force the states to increase the size and scope of government.”
This could be very interesting. The feds ALWAYS FORCE states to do stuff by threatening the flow of money - like raise the drinking age, wear seat belts, give calculators to Kindergarteners for math, require kids not learn phonics until 3rd grade, etc.
Maybe a state or two will step and fight this crap.
“Obama Leads Romney In Polls Of Ohio, Florida and Pennsylvania”
Do you think that any of the others would be doing better at this point? I, like most FReepers, wanted any of them (other than Perry because he wants to sell off our freeways), but I doubt Santorum/Newt/Michelle/etc. would be running away with it either.
Carter was cleaning Reagan’s clock at this point too. I’m no Romney-lover, but people simply are not focused on the election. To me it sounds like Republicans are ready to take this health care issue to the voters and the voters don’t want it. And they’re not that hot on Obama for other reasons.
Let’s see how Obama’s doing in the middle of October.
Romney is the worst major candidate of all those who ran, no doubt. But because of conservative division and his money and organization, he won the primaries.
You need to be careful assuming that Quinnipiac state polls are somehow iron clad predictions of anything. They are a liberal organization. They do not have a great track record of accuracy.
In addition, you are talking about a snapshot in time.
That snapshot is over. It was over before the polls you link to were even published.
If you doubt their leftism at that polling organization, just look at where they were being ballyhooed: the Huffington Post - of all leftist rags.
Oh, Ok, am I supposed to be happy now? Barone, your logic escapes one big fat in-your-face fact... Obama and the Democrats do whatever the hell they please, regardless of law... you think that the “high” court ruling puts a limit on these ass>o<’s actions? Always trying to put a silver lining on the bleakest of realities. They hold a gun to your head and you notice that the safety lock is on, makes you feel a whole lot better don’t it... you imbecile.
The comment I heard about Roberts playing chess while everyone else was playing checkers seems apt.
Arguing that economic distress would make Americans more supportive of big government policies.
Did Obama write that?.
This guy is dreaming if he believes a liberal appellate court or a future liberal Supreme Court will honor these “limits” on the commerce clause.
Obama Leads Romney In Polls Of Ohio, Florida and Pennsylvania
Posted: 06/27/2012 9:18 am Updated: 06/27/2012 10:29 pm
That is a lifetime away for barry right now. Thnx to the SC obamacare disaster
Romney has to come up with a very effective campaign linking the Obamacare tax increases to the sluggish economy. It all has to be tied together.
Democrats are attempting to separate the two by saying the Obamacare decision is water over the dam - now let’s get back to the economy and jobs. They can’t be permitted to get away with that. The two need to be inextricably linked-starting ASAP.
Exactly, Pray for the Republican Convention to nominate another candidate.
BUT WHO? SARAH PALIN? TANCREDO? GOOD MEN AND WOMEN SELDOM WANT ANYTHING TO DO WITH POLITICS, IT IS RARE AND IT DOES HAPPEN.
PRAY FOR A CONSERVATIVE TO COME FORTH AND RESTORE AMERICA TO OUR FONSTITUTION.,, IN JESUS NAME.
Readers: if you have read the following on another thread today, please ignore. If not, then perhaps, as Barone indicates, for the first time in seven decades, the Constitution's limits are the subject of intense political discussion and study. That is a good thing for the future of liberty.
"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court even can do much to help it." - Judge Learned Hand
Now is the time for "the People" to stand for the foundational principles of liberty enshrined in the 1787 Constitution.
Despite last week's ruling, the "Trojan horse" called "health care reform" simply was a vehicle in the goal of "transforming America" from its foundations in individual liberty to one of coercive rule by political elites--imperfect persons in positions of power in government.
America's Founders understood the latter concept well, and they soundly rejected it in favor of a written "People's" Constitution to forever limit, separate, check and balance, and "bind down" their elected and appointed representatives in government. In Article V, they provided the only valid means of amending that written Constitution. The results were astounding!
Then, along came the so-called "progressives" who, in their arrogance and lust for power and control, several decades ago began to erode those "foundations" of individual liberty. Now, led by the current Administration, "health care reform" was to lay a different and opposite foundation.
By the Founders' formula, "the People's" written Constitution was the anchor of our liberties, binding government to the "People's" limitations on its power.
The "progressives" (who are, in fact, regressive in their counterfeit ideas), in effect, would undo all the monumental work accomplished by the Founders on behalf of liberty and leave the law afloat and without anchor, relying, as of old, on mere men and women.
From Page xv of "Our Ageless Constitution," allow me to include here excerpted words from President Andrew Jackson's Proclamation of December 10, 1832:
"We have received it [the Constitution] as the work of the assembled wisdom of the nation. We have trusted to it as to the sheet anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here and our hopes of happiness hereafter in its defense and support. Were we mistaken, my countrymen, in attaching this importance to the Constitution . . .? No. We were not mistaken. The letter of this great instrument is free from this radical fault. . . . No, we did not err! . . . The sages . . . have given us a practical and, as they hoped, a permanent* Constitutional compact. . . . The Constitution is still the object of our reverence, the bond of our Union, our defense in danger, the source of our prosperity in peace: it shall descend, as we have received it, uncorrupted by sophistical construction, to our posterity. . . ."
*Underlining added for emphasis
And, it was Thomas Jefferson who used another metaphor with reference to the Constitution when he indicated that "the People" must "bind them (government) by the chains of the Constitution." In another instance, he declared: "It was intended to lace them up straitly within the enumerated powers. . . ."
With that in mind, we also might remember these words from President Washington's "Farewell Address":
". . . Towards the preservation of your Government and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. --One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. . . ."
Rather than railing against the ruling, whatever energy lovers of liberty can muster should be directed toward enlightening the minds of fellow citizens in the urgent need to study and understand what Washington, Jefferson, Jackson and the other Founders understood--that imperfect people who assume power over the lives of their fellow citizens are to be "bound down by the chains of the Constitution," according to the Author of our Declaration of Independence.
You have been asked be several freepers including myself who in your mind would be the the right person, but you refuse to answer. Until you do, do me a favor and don't bore me with your anti Romney rant
That is what I heard too, although it was not meant literally in case someone thinks so
Thanks and bump for another great post
Mr. RomneyCARE has NO chance because he created
this evil and so much more.
Any other GOP candidate would be far more acceptable.
Just look at the polls if you dare.
Author of ObamaCARE to Sen. Kennedy:
I may always be to the Left of you, Ted,
but I bet you $10,000 that my Legions can
fool anyone and sell me as a conservative anytime
enough money flows.
What an outstanding post!
Thanks for your acknowledgement of my post on this subject. We need a return to the Founders’ ideas if future generations are to enjoy the liberty we inherited.