There's no denying that conservatives are largely disappointed that Chief Justice John Roberts cast the deciding vote upholding the constitutionality of the Patient Protection and Affordable Care Act, more commonly known as Obamacare.
Especially irksome to many is the way in which he cited Congress's authority to levy taxes as the way to preserve the new law's mandate that every American purchase some form of health insurance or pay a penalty. Typical of the criticism is that leveled by Grover G. Norquist, the influential president of Americans for Tax Reform.
Writing in Politico Norquist opined,
Justice Roberts believes he is limiting the power of the central government by requiring it to change the reason it gives for forcing Americans to behave as told. Before, we can force you to do what we want because the 'commerce clause' gives us that power. Now, the government can threaten you with a tax large enough to bludgeon you to do what it wants you to do.
"This appears," Norquist continued, "to be a distinction without a difference. He has slammed shut the old door and opened a new one."
Also bothersome to many is the emerging story that Roberts "changed sides" during the court's internal debate. Initially, the story goes, Roberts agreed with Justices Scalia, Kennedy, Thomas, and Alito—who issued a strongly worded dissent declaring the whole law unconstitutional. Bowing to political pressure, seeking to preserve the court's reputation, and/or wishing to be loved by the Washington establishment, say the tellers of the tale, Roberts chose to jump the fence and instead voted with Justices Breyer, Ginsburg, Sotomayor, and Kagan to keep the law on the books.
All of this, to one degree or another, is beside the point. The decision has been reached and no amount of Monday morning quarterbacking will make a difference. It is important to know what the court said and how its ruling is to be applied going forward. It is important to understand, to the extent possible, the legal reasoning underpinning what Roberts wrote and what the other justices wrote. But the most important thing, the first thing really, is the need to press on in the political arena with the case for repeal.
The court case, which appeared to have considerable merit, was really only a shortcut, a way to circumvent the democratic process. To be sure the court should have made its finding on the basis of constitutional limitations on government as the founders intended, which many have persuasively argued it did not do, but the real cause has always been to repeal Obamacare through the same legislative process by which it was enacted.
In that regard, the always insightful Dean Clancy of FreedomWorks has come up with a five-point plan to repeal Obamacare:
- Stop your state from setting up an ObamaCare exchange.
- Get your state to opt out of the ObamaCare Medicaid expansion.
- Elect four additional pro-repeal Senators, which would give us a pro-repeal majority.
- Retain and if possible enlarge the existing House majority, which is committed to full repeal.
- Elect a president who will sign the full repeal bill.
Breathtaking in its simplicity, the plan virtuously relies on the democratic process—and not the imperial judiciary—to achieve what is, fundamentally, a political objective. The battle can be won—but it only if those who oppose Obamacare engage in the process themselves and do not rely on others to win the fight for them.