TIA Daily • June 28, 2012
The Significance of the Obamacare Ruling
by Robert Tracinski
Editor's Note: My local Tea Party group, the Jefferson Area Tea Party, is meeting tonight. We were supposed to be gathering for a talk by Oleg Atbashian of The People's Cube, but Oleg got trapped in Florida because of a hurricane. So instead, among other things, I'm giving a short presentation tonight on the Obamacare ruling and its implications. Here is what I plan to say.—RWTWe're back to square one.
I know today's Supreme Court opinion on Obamacare is a disappointment, but let's remember why it is a disappointment. No one had any great expectations that the Supreme Court would throw out the whole health care law—we though it might, but we didn't expect it—before late March. It was only after the oral hearings on Obamacare that we began to hope that a majority of justices would accept the constitutional arguments against it. So our expectations were disappointed only because they were raised.
Now those expectations were not entirely dashed. A number of people have pointed out that there is a silver lining in Chief Justice Roberts' ruling. The whole case for the constitutionality of Obamacare, as presented by the Obama administration and Democrats in Congress, was that the regulatory power given to Congress under the Commerce Clause is unlimited. But Roberts specifically rejected that argument and wrote into his opinion anexplicit limitation on the scope of the Commerce Clause. Here is what he wrote:
"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to 'regulate Commerce.'"Now that is the kind of thing we haven't heard in a long time. And he got four liberal justices to sign off on it.
But that's kind of a pyrrhic victory, because he did sustain the individual mandate under the government's power to tax, which apparently is unlimited. The whole point of limiting the power of Congress under the Commerce Clause is to stop legislation like Obamacare. So if it doesn't stop Obamacare, the limitation is a bit theoretical and airy-fairy.
The big lesson here is this. If you limit one of government's broad, sweeping, unlimited powers, you'll find that they get you with another of the government's broad, sweeping, unlimited powers. Remember the story of the little Dutch boy and the dike? He sticks his finger in a chink in the dike to stop the kingdom from being flooded. Well, we stuck our finger in the Commerce Clause chink over here, and then a new leak sprung up in the Taxation Power chink over there.
So it's a reminder of how vast and out of control government power has gotten, and how big a task we still have ahead of us.
As for the immediate implication, Chief Justice Roberts told us exactly what to do.
"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. It is not our job to protect the people from the consequences of their political choices."Repeat: "It is not our job to protect the people from the consequences of their political choices."
The American people made bad political choices in 2006 and 2008, and it's going to take three elections to undo them. It will take three votes to cycle through all of the seats in the Senate and reverse the huge Senate majority the Democrats had in 2008.
This is the second of those elections. And as Mitt Romney reminded us, the only way to get rid of Obamacare now is to vote Barack Obama out of office. And not just to remove the president, but to get a strong Republican majority in the Senate. I don't think I need to remind people here in Virginia what that means for us.
So it's up to us now to fight for the repeal of Obamacare by making our wishes known at the polls in November. This is the most important fight of our lives, and not just because Obamacare is destructive and a power grab. It is important because of how Obamacare was passed.
Here's one of the things I noticed about the ruling. When Obamacare was passed, President Obama swore blind that the individual mandate was not a tax. And when Democrats in Congress were asked for the constitutional justification for the law, they cited their unlimited power under the Commerce Clause. So this ruling basically holds that Obamacare is constitutional—if we assume that Obama was lying and that Congress was dead wrong about the Constitution.
But we know that this won't really faze the left, because we know, from history, the kind of calculation they make. They don't mind lying and twisting the arguments to get a bill passed, and they don't even mind losing an election or two, if they have to. Because they know that once the law is passed—again, based on historical experience—once it is passed, it's there forever. Government grows, more people are made depending on government benefits, and they get to act as the benefactors who are handing out all of these free goodies, and as the people protecting these benefits against those mean-spirited Republicans who keep telling us that we can't afford it.
So you can see the strategic calculation. Lose an election today, but expand the state and win elections tomorrow.
This calculation works for them, so long as nothing ever gets repealed. It's a sort of Brezhnev Doctrine for statism. Back during the Cold War, Brezhnev was the Soviet dictator who said that once a country went Communist, it was never allowed to go back. So if someone decided to allow a little bit of freedom in Hungary or in Czechoslovakia, in rolled the tanks. People don't remember it much these days, but there were two competing theories about how to deal with this. The first was "containment," which is what we did for a long time. The idea was just to keep the Soviets from expanding, but we still accepted the advances the Soviets had already made.
The other strategy was called "rollback," which was the idea that we should try to dislodge the Communists from Latin America, from Eastern Europe, from places like Afghanistan. And the moment we did that—well, you know how it turned out.
What we need is a strategy of rollback for big government, for the welfare state. We need to show the Democrats that they can lose Congress and lose the presidency for the sake of Obamacare—and we'll still repeal the damned thing. That ought to reduce the incentive to shove through a piece of legislation that the American people hate.
We need to seek the same outcome that Ronald Reagan announced as his goal for how the Cold War would end: "We win, they lose." We started doing that in November of 2010, and we have to keep on doing it this year.
Postscript: The above is all I'll have time for tonight. Helen has given me a strict time limit, and she's not a woman to be trifled with.
For my readers, I'll add one more point. The Obamacare ruling doesn't just create an issue for the battle between left and right. It also sets up an important crusade within the right. As I have written before, the oral hearings on Obamacare, the seriousness with which the arguments were taken—and now the fact that those arguments were fully accepted by four of the conservative justices—all of that gives us a sense that it may be possible to revive constitutional protections for economic liberty. If Romney wins, this sets one of our top priorities for after the election. We need to make sure that the next Supreme Court appointee is not just someone who is vaguely "conservative," but someone who will accept the kinds of arguments that the four dissenters in this case accepted.
That fight is not over. It is just beginning.