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What’s Next for the Opposition?
After SCOTUS ruled

Protesting against Obamacare outside the Supreme Court, June 28, 2012

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LARRY J. SABATO & KYLE KONDIK

It looks like Chief Justice John Roberts just issued a long written apology for screwing up the presidential oath in January 2009. Obviously, the Affordable Care Act was hanging by a thread, and the thread was named John Roberts. Anthony Kennedy wasn’t there for President Obama. The court’s decision to largely uphold the law kicks the issue back to the political arena, and both parties will continue to press their case on health-care policy as the election approaches.

The decision saves Obama from embarrassment and preserves his signature domestic-policy achievement. Meanwhile, Republicans will continue to criticize the law and promise to overturn it if given control of the government. In other words, Obama’s and Romney’s political arguments, at least in regard to health care, remain largely unchanged.

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This decision energizes both party bases, but it will have no crucial effect on November. It is only June, and too many onlookers are drawing straight lines to the election.

Democrats got something to brag about to their troops, and Republicans got a renewed reason to work to install a GOP president and Congress. But what seems like a huge story Thursday probably won’t be as important as the election draws nearer. This election is still about the economy, and its performance will be the biggest factor in determining the result. People’s political opinions about health care are largely derived from their party ID; that means that the decision probably changed few minds, especially because the law was upheld. In the nation’s political environment, opinions on health care were already baked into the cake prior to the Court decision.

In the immediate reaction to the ruling, many declared that “everything has changed.” Actually, very little has changed. And that’s the whole point of the ruling.

— Larry J. Sabato and Kyle Kondik, University of Virginia Center for Politics.


ILYA SOMIN

Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also a partial vindication for those of us who worked to get the mandate struck down. Chief Justice Roberts’s opinion for the Court actually rejects the federal government’s most important arguments for the mandate: that it is authorized by the Commerce Clause and the Necessary and Proper Clause. It also reaffirms the need to impose limits on federal power and emphasizes that Congress does not have the authority to impose whatever mandates it wants. Yet Roberts then snatched defeat from the jaws of victory by ruling that the mandate is constitutional because it is a “tax.”

In the first part of his opinion, Roberts endorses the main argument the plaintiffs made against the mandate: that it is not authorized by the Commerce Clause because it does not regulate any kind of preexisting “economic activity.” The mandate “does not regulate existing commercial activity [but] instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”

If Congress can “regulate individuals precisely because they are doing nothing,” it could impose almost any mandate it wants, including mandates to purchase broccoli, cars, or any other product. The Constitution, Roberts concludes, does not “bring countless decisions an individual could potentially make within the scope of federal regulation, and . . . empower Congress to make those decisions for him.”

So far, so good. But then the chief justice “empowers” Congress to do exactly that, by ruling that the mandate is constitutional because it is a tax. Roberts argues that the mandate is a tax because it imposes only a monetary fine on those who fail to comply, and because the fine does not apply to people too poor to pay income taxes and it is collected by the IRS. By that standard, pretty much any mandate can be magically converted into a tax simply by structuring it in the same way. As Roberts acknowledges, interpreting the mandate as a “tax” is not “the most natural” reading of the law, which calls the mandate a “penalty.” That’s because it actually is a penalty, which the Supreme Court defines as “an exaction imposed by statute as punishment for an unlawful act” or omission. The health-insurance mandate imposes a fine as punishment for the unlawful refusal to purchase government-mandated health insurance

Fortunately, Thursday’s closely divided decision is not the end of the debate over the scope of federal government power. The Court obviously remains closely divided on these issues, and future decisions might limit or even reverse the impact of Thursday’s mistake.

— Ilya Somin is an associate professor of law at George Mason University School of Law.


CAL THOMAS

Obama lied. His law is a tax according to no less an authority than Chief Justice John Roberts. Did anyone vote for a tax increase?

What liberals hope for is that sufficient numbers of Americans are addicted to government that they will vote for more “government drugs.” Are there remnants of liberty lovers who will vote this bunch out and then put in people who have the guts to stop the assault on our freedoms? We will soon know.

Already we are hearing from “grannies” and other people with sob stories who claim they can’t get help without government.

There are ways to fix the things that are wrong with medical care, but more government isn’t the answer. If anyone thinks government does a better job at almost anything than the private sector does, all he has to do is look at Medicare and Medicaid, which are going broke.

The taxes kick in after the election. Unless voters stop this fraudulent behavior, we will have lost a fundamental freedom that will be nearly impossible to recover. It is a dark day for America, and even for those Americans who rejoice over the Court’s decision but will live (or die) to regret it.

— Cal Thomas is a syndicated and USA Today columnist as well as a Fox News contributor.



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