But here are my reasons why this isn't the full-fledged disaster I might have thought.
- The ruling didn't expand the power of the commerce clause to infinity. From the WSJ: "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions," the chief justice wrote.
- Most conservatives had always felt that had the mandate been honestly labeled as a tax, it would have never been challenged. Even though J.E. Dyer at HotAir asks what limit there is on the power to tax, the fact is, there has never really been a limit, so the ruling changes nothing.
- I always thought the mandate's financial penalty was too weak to force compliance.
- The mandate has no criminal enforcement provision, including asset forfeiture in the portion of the tax code in which it resides.
- Because the mandate is a tax, it's repeal can't be filibustered in the Senate, where the rules on filibuster do not apply to spending bills.
- The ruling on the Medicaid portion is likely to be more substantive. From Volokh: the federal government may deny the states additional Medicaid funds if they refuse to comply with the coverage expansion requirement, but may not take away their preexisting Medicaid funds. The states may then opt out of the expanded coverage, without risk to their current Medicaid funding. In the long run, this may kill the whole scheme. I am encouraged that seven justices accepted a states' rights argument.
- The Chief Justice worked to protect the reputation of the court. I disagree with the way he did it, but understand the concern. The court should give deference to the legislative branch. The court's failure to interfere here may buy it good will in the future with Americans less invested in right vs left politics.
- This is likely to help Romney, who is making the argument that the only way to get rid of Obamacare is to get rid of Obama. Supposedly, $1 million has rolled in since the decision.
- The court has ruled officially that Obama has raised taxes on the middle class.
- Ultimately the public got what it deserves for electing Democrats in such overwhelming numbers, including the 2008 nominee, who lacked the experience to inject any leadership into this miserable bill. We are reminded of why we need a tea party movement to restore government to constitutional limits because we, the people, demand it.
And Holder was the first Attorney General to be slapped with a Contempt of Congress citation, cementing his reputation as most miserable hack, evah.
Best suggestion I heard was also from Volokh:
. . .schedule a new vote in the House on the individual mandate, but replace the “penalty language” with language specifically acknowledging that the “penalty” is actually a tax. If the Democrats vote “aye,” they’ve acknowledged breaking the Obama pledge not to raise taxes on the middle class. If the Democrats–specifically those who already voted for the mandate–vote “nay”, what becomes of the tax argument in future litigation? Seems to me that Roberts was only able to argue that the mandate is a tax because no one specifically said it wasn’t.
11. It's a very small consolation, but the decision also prevented the court from bailing out the Congress on severability. I note that the four dissenters would have tossed the entire law, contrary to my expectati0n. Had Roberts sided with them, there would have been hell to pay.