The Beggar Rides
It's a minority view among conservatives, but Hugh Hewitt believes the decision upholding the constitutionality of Obamacare may work out in the long run--not unlike Marshall and Marbury v. Madison, Chief Justice Roberts is accepting a short-term loss for long-term gain.
Hewitt asks how will we look at things a few years from now:
What if Romney wins, Obamacare is repealed, two or three or four new SCOTUS justices arrive and the Chief Justice --immune forever from charges of partisanship-- leads a revitalized originalist block on a refashioning of key areas of long tortured jurisprudence?
First, if Romney wins, Obamacare may be repealed. If Romney loses, Obamacare will not be repealed. If John Roberts had changed his mind, Obamacare would be repealed right now.
If Romney is elected, he may get to replace a couple liberal justices or he may not replace a single one. If he nominates a strong conservative, even with the health care decision, the Democrats will fight hard to block the candidate, perhaps even filibustering. Of course, if Obama is reelected and gets to replace even one conservative, all the careful preparatory work for a new jurisprudence Hewitt believes Roberts has done will be set aside.
The Chief Justice will not be immune to charges of partisanship. He will never be. Every time he votes with the conservative bloc in any close, controversial case, he will be attacked. In fact, he's already been attacked by the left for the Obamacare decision. The idea that political people will give him a pass because of an old vote is laughable.
It's true in the political world losses can sometimes lead to victory, but counting on it is a bad strategy, short or long term.
posted by LAGuy @ 12:14 AM
9 Comments:
I think the expression you're looking for is "whistling past the graveyard". I have a strong suspicion that QueensGuy is going to be proven right: now that it's the law of the land, we're just going to have to live with it and make the best of it we can.
I don't trust Romney to repeal it and the only way he gets to appoint anyone to the Supreme Court is if one of them dies - there's no way in hell any of the liberal judges will retire while a Republican is in office.
My feeling, even if the Republicans gain complete control of congress and the presidency, is that they'll say "repeal" but what they'll really do is tinker, trying to minimize the political fallout, which will be huge.
Roberts seems to have driven from his typical bloc by their overreaching (even Posner commented on that in Slate). It seems that he applied his umpiring principles that he described in his confirmation hearing.
I don't see this as a political vote despite how the disappointed partisans try to spin it an why does anyone think it matters whether political types "give him a pass" or not. Lifetime tenure, baby.
I really don't think these guys operate to get higher favorability ratings in the polls.
He's young and here is hoping he pisses of ideologues and other morons in the decades ahead.
I wouldn't mind if Roberts pissed of ideologues if just once the liberals would truly piss off their side as well.
I don't think Roberts was seriously engaged in political strategy in making his decision. Most everyone has always thought that a tax can constitutionally be used to influence people's behaviors (see cigarette taxes). The argument was made, and all Roberts had to do is elevate substance over form - that is see the mnadate for what it really was - a transfer of money to the insurance industry (either directly or by means of the penalty) for the purpose of providing universal insurance coverage.
On the heels of the Kelo decision, it's not that big a stretch - the S.Ct has already said the Fed. Gov't can use its powers to benefit a private industry that serves a gov't purpose.
The disappointment I have is that he didn't find a majority that would agree to postpone the decision on the constitutionality of the tax, since taxes may not be challenged by law until they have been collected. He should have found the ACA not allowed as an exercise of the Commerce Clause or Necessary & Proper clause, and but held it possibly a constitutional tax, which it could not be decided until put into effect. He probably couldn't get a majority to go with this, and so placed form over substance and decided that even though it is a tax, the AIA only applies to taxes that are actually called taxes in their enabling statute.
But if this view of taxes is correct then it gives Congress an end run against any limitations the Commerce Clause might have previously held. Now there's nothing they can't get to and all they have to do is command you do something or fine you and it's now a tax. I don't see how this can make sense in how naming something a tax can make what was previously unconstitutional okay.
Congress has various enumerated powers. Regulation of interstate commerce is just one of those. The taxing power is generally thought of as being designed to generate revenue, but the S.Ct has long allowed subsidiary purposes (again, look at cigarette taxes, import duties, etc.) So if the ACA tax is designed to pay for national insurance, like gas tax is designed to pay for interstate highways, it's presumably okay.
That's a great title. I'd toss it into the hopper of your best ever.
Damn. Looks like you were beat to it, barely. http://smackshack.livejournal.com/13501.html
I checked out that URL. He beat me to it, though I used it a bit more subtly since he explicitly wishes for impossible things.
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