Carol Platt Liebau
The Supreme Court, 5-4, has ruled that ObamaCare can stand.  The individual mandate has been held to be a tax, rather than an exercise of congressional power under the Commerce Clause.  And Chief Justice Roberts -- rather than Justice Kennedy -- was the swing vote.

Here is my analysis: As the Chief Justice, Roberts feared for the institutional credibility of the Court were the legislation to be struck down.  I suspect he was somewhat concerned about the wholesale assault being launched from the left -- including the President -- and saw it as his responsibility to tend to the long-term institutional strength and credibility of the Court.  Perhaps he perceived the Court's public standing to be threatened by the left's reaction were ObamaCare to have been wholly overturned.  What's more, he took the most judicially restrained approach, finding a way to "save" legislation when it was constitutionally possible to do so.  Note that just as he says about ObamaCare: I am not commenting on the wisdom of his course; this is just my analysis of the reasons for it.

At least the Commerce Clause justification for the individual mandate fell.  As a result, the Court has not given Congress a blank check to regulate the most intimate details of our lives under a specious invocation of the Commerce Clause.  In other words, no -- Congress cannot now force us to eat broccoli or do a million other things . . . because Congress's right to regulate interstate commerce was not used as a justification for upholding this legislation.  Congress' taxing power was.

And transforming the individual mandate into a tax -- as the administration asked in its oral arguments -- just highlights how duplicitous the President was in selling the bill.  Who can trust a guy who says this and then argues that ObamaCare's mandate should be upheld as a tax?   No doubt we'll hear plenty more about this . . . and we should.  

What's more, voters in places like Missouri and Montana should realize that their senators -- Claire McCaskill and Jon Tester, respectively -- both cast the single vote that made ObamaCare possible; if it is to be repealed, they will have to go. 

So what now?  This is better news for Obama than having his signature achievement dismantled.  But in the long run, they have also lost a great rallying point to try to drive their supporters to the polls . . . and conservatives have gained one.  The only way ObamaCare will go is if a President Romney is in The White House.

And go it can. Here are the various ways.  They involve a mix of waivers, non-enforcement of regulations and use of reconciliation.

I would also point out that if the legislation as a whole could be passed under reconciliation, there's surely an argument to be made in days to come that it could be repealed that way.

HATE OBAMACARE?  DONATE, WORK FOR and VOTE FOR ROMNEY.  ObamaCare will have to die from a thousand legislative cuts, but this Frankenstein monster can still go down.

NB: I have updated this post to clarify and expand on its meaning.

Carol Platt Liebau

Carol Platt Liebau is an attorney, political commentator and guest radio talk show host based near New York. Learn more about her new book, "Prude: How the Sex-Obsessed Culture Hurts Young Women (and America, Too!)" here.


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