The front of the Supreme Court was littered with protesters of every stripe on Thursday: Tea Party patriots in full regalia, feminists in possession of signs urging the high court to “stop the war on women,” fundamentalist preachers pontificating over loudspeakers, and the usual group of belly dancers “shaking it up for single payer.” In the aftermath of the announcement, it became apparent that those on both sides of the debate sort of missed the real meaning of the decision.
Those on the left tend to believe that the majority’s opinion represents a political victory for President Obama and a courageous gesture of endorsement for expanded federal involvement in healthcare. The right appears to be divided into two camps. There are those who see Chief Justice Roberts as a traitor who made the wrong decision and those who see Mr. Roberts as a sort of John Marshall in our midst, pressuring the Obama Administration while establishing a precedent that might serve to scale back the powers of the federal government in the future.
To take the position that many on the left take, one would have to ignore the fact that the mandate has now been rhetorically framed as a tax hike on an estimated three million lower-income and middle-class citizens. Additionally, one would have to believe that Supreme Court rulings are policy endorsements rather than judgments as to the Constitutionality of an action without regard to its quality or effectiveness.
In the conservative camp, one must take the position that Chief Justice Roberts has spent the last three decades masquerading as something he is not. One can believe this or that he has had an eleventh hour conversion to legal realism. To follow these explanations to their logical conclusions, we must either believe that Mr. Roberts successfully hoodwinked Chief Justice Rehnquist and President Reagan as a young man or claim openly that he has philosophically rejected Constitutional Orginalism while serving on a bench with Justice Antonin Scalia. It is difficult to say which explanation is more absurd.
The alternative contrarian position of some conservatives is that the Obamacare ruling was ingenious. This view is based on the premise that the ruling was intended to affect the outcome of the presidential race while establishing a precedent which sets limits on the Commerce and Necessary & Proper Clauses. To begin with, the role of the Supreme Court is not to participate or maliciously influence electoral politics. If the ruling was made with the election in mind, then it was made in a highly unethical manner.
On the other hand, those who claim that the ruling still has important implications for reigning in federal power seem to have missed what the Court has decided in regard to the Taxing & Spending Clause. The text of the majority opinion makes it very clear that taxing citizens for inaction is entirely appropriate and within Congressional limits of power unless, that is, it can be construed as a penalty. What is the difference between a tax and a penalty? The Court refuses to say except to makes it clear that the Obamacare tax is, for now, not a penalty.
So what is the actual meaning of this ruling? It is, in essence, that the Patient Protection and Affordable Care Act has been upheld on very delicate legal reasoning which unintentionally expands the taxing power of the United States Congress.
While no one knows how this ruling will affect fall’s political landscape, we can at least say this for certain: the judicial avenue for eradicating this law has been exhausted. Now it is up to the American electorate to decide its fate. As Senator Jim DeMint made clear at a press conference on Thursday:
“The Supreme Court may have said that we can keep it, but the American people must stand up and say it is bad policy, it’s bad law, it’s bad for our economy, and it’s bad for the American people…most of all, it’s bad for health care!”
Perhaps this is something health care voters across the political spectrum can be brought to agree upon.
Nick Mignanelli | University of New Hampshire