It has been a remarkable and consequential 24 hours. Over the last day, the American political landscape has -- in both the long and short term -- shifted considerably. The president's signature legislative "achievement" has been Constitutionally affirmed by a slim majority of the United States Supreme Court. The president momentarily celebrated his victory, even as many of his down-ballot Democratic compadres ducked and covered. The conservative movement has been set ablaze over an issue that largely fueled its historic triumph in 2010. And a series of watershed legal precedents have been established. Let's begin by examining the long view, which incorporates both jurisprudential and political considerations. The Wall Street Journal editorial board speaks for most conservatives in sharply criticizing Chief Justice Roberts' (quite possibly last-minute) decision to uphold the entire law:
Every lower court that heard the health-care cases rejected the taxing argument. Administration lawyers devoted only 21 lines of their reply brief to this argument and it barely came up at oral arguments. The Chief Justice in effect revised the statute in order to find it constitutional. But if the mandate is really a tax, why doesn't the law known as the Anti-Injunction Act apply, which says that taxes can't be challenged legally until they've been collected? The Chief Justice actually rules that the mandate is a tax under the Constitution and a mandate for the purposes of tax law.
In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it. . . . One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying "verbal wizardry too far, deep into the forbidden land of the sophists." Justice Kennedy dissented angrily from the bench, and it is to his credit that he defended the federalist system of shared powers that is the hallmark of his years on the Court. The particular tragedy is that four Justices would have overturned not merely the purchase mandate but all of ObamaCare as unconstitutional. Only John Roberts prevented it.
I must confess that I am still mystified and aggrieved by the reality of Justice Kennedy angrily dissenting from the Roberts-led liberal majority maintaining one of the worst American laws ever written. Nevertheless, some genuinely brilliant conservative scholars are now embracing a theory that though Roberts may have authored an immediate setback to the cause, he did so in order to advance a broader strategy to significantly curtail federal power. To that end, they're essentially arguing that this case was Roberts' Marbury v. Madison, the 1803 landmark SCOTUS decision that established the practice of judicial review. Law professor Hugh Hewitt floated this possibility on his radio program last night (I joined him on the show, and articulated my intense skepticism of the theory, part of which I expand below). Sean Trende wrote a lengthy but must-read piece explicating this point in greater detail, and George F. Will devoted his latest column to expressing a similar sentiment:
By persuading the court to reject a Commerce Clause rationale for a President's signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America's political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution's architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday's decision reaffirmed the Constitution's foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”
When Nancy Pelosi, asked where the Constitution authorized the mandate, exclaimed “Are you serious? Are you serious?” she was utterly ingenuous. People steeped in Congress' culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursday's episode in the continuing debate about the mandate will reverberate to conservatism's advantage. By sharpening many Americans' constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the “legitimacy barrier”: Is it proper for the federal government to do this? Conservatives can rekindle the public's interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.
Trende adds that Roberts has inoculated himself against (inevitable) future cries of right-wing bias from the Left, and that he's help stabilize the Court's long-term reputation for political independence. This, he reasons, will give Roberts cover to join numerous and meaningful conservative decisions in upcoming terms:
This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action. Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act. I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence. But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.
In other words, Roberts has fortified the famous "balls and strikes" formulation from his confirmation hearings, in which he argued that justices must act as impartial umpires of the law. With the limelight shining brightest, he practiced what he preached by standing up to his political preferences, making an unpopular decision, and delighting his natural adversaries. As a Constitutional matter, the Hewitt/Will/Trende theory will not be disproved or vindicated for years. It's entirely possible that they're correct. On the reputational questions, I understand and perhaps even agree with the calculus set forth by these gentlemen, but I don't see how those considerations should trump fidelity to the Constitution. Isn't that function Roberts' overwhelming, if not only, duty? Several of the aforementioned arguments also rest on the assumption that the Court will remain relatively ideologically stable fore the foreseeable future. But if President Obama wins re-election, it's more than conceivable that over the next four years, Justices Kennedy (75) and Ginsburg (79) would retire, and one of the longer-serving conservatives would pass away (Scalia is 76 and Thomas is 64). If the Court gets stacked with three more 'Kagans' during Obama's second term, Roberts' exciting new political capital will be rendered largely useless as the new liberal majority imposes its will. We have no idea how the next election will turn out. Roberts could have struck a decisive and lasting blow for liberty by invalidating a mammoth government intrusion into a core element of American life -- not some day, but here and now. He didn't. The future is uncertain, to say the least, and any carefully-laid "long game" designs could be unhappily distrupted by one or more unforeseen events.
Furthermore, I do appreciate some of the positive implications of the Court's 7-2 ruling against Obamacare's Medicaid expansion (one of which will make the law easier to repeal via reconciliation due to its even greater contribution to deficits). I also see how the Commerce Clause slap-down is a theoretical win, and that future liberty encroachments via the taxing power will be significantly harder to sell to a tax-averse public. But liberals again and again prove themselves ever willing to shift rationales to achieve desired ends. In short, I don't think any newly-"established" constraints on governmental action will actually constrain future liberal Congresses or presidents in practice; they'll do what they please, and find a way to justify it. Maybe the Court will hold them at bay. Or maybe the Court will be liberal by that point and will happily carry water for fellow statists. Or maybe another conservative justice will rule with the liberals in order to move the ball forward in the same hypothetical, quixotic "long game" that never seems to be won. Those are the reasons why, despite the persuasiveness and optimism of others' rationale, I still cannot bring myself to chalk up yesterday's ruling as a victory.
In the short run, the Romney campaign took in $4.6 million online within the first 24 hours after the Obamacare decision. These funds came from more than 47,000 individual donors. To put that number in perspective, Romney attracted about 27,000 individual donors in the entire month of May -- when he trounced Obama in fundraising. 'We The People' are hugely energized up by the Court's clarifying decision, as many citizens are coming to grips with the reality that the only remaining way to squash Obamacare is to support Republicans, financially and electorally. A series of (sometimes unreliable) overnight polls from Survey USA show that the Court's verdict is unlikely to move public opinion in Obamacare's favor. Pluralities or majorities in California, Kansas and Florida -- Left, Right and center -- disagreed with the Court's decision, and still believe Obamacare will make their healthcare worse. By a large margin, Florida voters still say the law will make healthcare more expensive. So public opinion remains decisively negative on this law, a fact that will inflict a great deal of agita on elected Democrats in swing states. I also expect any potential Obamacare poll bounce to be fairly quickly negated by the coming avalanche of accurate, "Obamacare mandate tax on the middle class" rhetoric from GOP candidates, including Mitt Romney. Obamacare isn't liked. The mandate is despised. And taxes on the middle class -- which Obama falsely promised to block -- are anathema. It's very telling that the White House is still denying that Obamacare is a tax, despite the Supreme Court's ruling, which the president hailed. Pound away at these themes, Republicans. This ad from the RNC is an exquisite start:
Devastating. Parting quotation, via an unnamed White House official: “I’m sure they’ll nail us on taxes and I’m sure it will work."
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