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A Republic — If You Can Keep It

The opinions expressed by columnists are their own and do not necessarily represent the views of
The Supreme Court decision to uphold the ObamaCare law’s individual-health-insurance mandate is far more complex than all the initial cheers and jeers suggest. Here are five things to take away from the ruling:

The president and Congress lied, but the justices aren’t the truth police. In holding that the individual mandate is a tax, the court directly contradicted President Obama and Democrats in Congress, who’d argued vociferously that it wasn’t. The president, recall, told ABC’s George Stephanopolis it “is absolutely not a tax increase.” But this ruling says that it is indeed a tax — in fact, a huge tax hike on the middle class.

The court, or at least Chief Justice John Roberts, took the somewhat cynical (or maybe reasonable) view that what politicians say is pretty much meaningless.

Yet how will average Americans react? The partisans are obvious: Those who love ObamaCare will be fine with another tax to help implement it; those who oppose it will find the tax one more reason to hate it.

But how angry will this example of political dishonesty make those in the middle?

The broccoli police aren’t coming — yet. Opponents of big government can take a small comfort from the fact that the court rejected the idea that the mandate was permissible under the Constitution’s Commerce Clause. It agreed with ObamaCare opponents that choosing not to buy a product is not an action that “substantially affects interstate commerce.”

This avoids a precedent that could’ve justified a wide range of government intervention in our lives. (The common shorthand for this was “a mandate that every American eat broccoli.”) The court thus seemed to acknowledge that there are some limits to federal power.

True, this may be a distinction without a difference: Congress can now apparently achieve many of the same things via its taxing power. But taxes are far more politically problematic than regulatory actions.

We’ll have to see how it plays out.

Federalism lives. A lower-profile part of the ruling was an important victory for state’s rights: The justices found (by 7-2) that the federal government can’t force states to expand their Medicaid programs by threatening to withhold all Medicaid funding from states that don’t comply.

The feds are to provide some new funds to help offset the expansion’s costs, but many states believe that funding would fall far short, leaving state taxpayers on the hook. E.g., some estimates suggest the Medicaid expansion could cost New York taxpayers $52 billion over the next 10 years.

But the court shot the “blackmail” down. Congress can withhold the new funds from states that don’t use the cash as Congress intended, but can’t strip a state of all its Medicaid funding if it doesn’t agree to the new requirements.

Congress has long used its control over the purse strings to impose its will on states. This decision limits that authority. For advocates of federalism, that’s a big win.

“Constitutional” doesn’t mean “wise.” As the chief justice wrote in his opinion, “Members of this court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them.”

ObamaCare is constitutional, but all the problems with the law remain: It still increases federal spending, taxes and debt. It still imposes fresh burdens on struggling businesses, making it harder for them to grow and hire new workers. It still drives up the cost of health insurance, especially for the young and healthy, and it still puts in place structures that will almost inevitably lead to the rationing of care.

“A republic, if you can keep it.” That Benjamin Franklin comment at the original Constitutional Convention sums up where the court has left us. The fight now turns to the political arena, not just with renewed Republican efforts to repeal the health-care law, but also with a debate over the larger issue of government power.

The court, not unlike Franklin, has said that it’s ultimately up to the nation’s citizenry to protect themselves from the dangers of big government. As Roberts wrote, “It is not our job to protect the people from the consequences of their political choices.”

The ball is now clearly in our court. If the court isn’t going to protect us from government overreach, the American people must be all the more vigilant.

This article appeared in New York Post

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