Broccoli Be Damned

Did you hear it?  Just in case you didn’t, there were two distinct sounds that permeated the ether at around 10:15 Thursday morning: a collective sigh of relief coming from the west wing of the White House and the collective thump of every right-wing radio talk-show host from Rush Limbaugh to Mark Levin falling over each other in disbelief.  If you’re a religious person, pray that Limbaugh wasn’t on top.

But let’s get serious and honest for just a moment.  When it comes right down to it, the Supreme Court’s ruling on the constitutionality of the Affordable Care Act’s mandate came out of left field.  Prior to the oral argument phase, most legal scholars thought it was a slam dunk that it would survive; afterwards the obituaries began flowing including, I’m sorry to say, my own.

Yes, yours truly had it dead to rights by a 5 to 4 count.  Well, as fate would have it, I got the score right, but the winner wrong.  Guess who’s not going to Vegas anytime soon.

So how did the improbable happen?  First off, Chief Justice Roberts caved.  There’s no other way to put it.  With Justice Kennedy leading the dissent (swing vote my ass) all Roberts had to do was go along with the other conservatives and “Obamacare” was a goner.  It was that simple.

But if Roberts’ decision to side with the liberals on the Court was unusual and completely unexpected, his majority opinion was one for the ages.  In a nutshell, Roberts attempted the legal equivalent of having his cake while eating it too.  He ostensibly rejected the Administration’s claim that the mandate was constitutional under the commerce clause. Strike one.  He equally rejected the claim that it was constitutional under the necessary and proper clause. Strike two.  If you were watching it live on CNN, you probably thought that was it – they sure did! 

And then Roberts knocked it out of the park, so to speak.  The mandate was constitutional because it was ostensibly a tax and Congress has the authority to levy taxes.  It says so in section 5000A of the Internal Revenue Code.  And that was it.  The only problem was that the word tax doesn’t appear anywhere in the statute and neither the President nor congressional Democrats referred to the penalty as a tax.  So how did Roberts arrive at his conclusion that a tax existed where none was implied?  He inferred it, that’s how.

And that’s where this bizarre decision gets even weirder because the reason Roberts was able to infer the penalty was indeed a tax was due in no small part to the oral argument phase.  That’s when the solicitor general for the Administration – the one we all wanted to draw and quarter because he looked (how did I put it) “about as prepared as a frat student taking his midterms after an all-night binge” – conceded that the penalty was, in fact, a tax.  And that was all Roberts needed to hang his hat on, and along with it the hopes of every right-wing gasbag in A.M. radio land.

Speaking strictly as a sports fan, I never question how my team gets into the playoffs, so long as they get there, but even I must confess a sense of bewilderment at not only Roberts’ decision, but the motive behind it.  As I said in an earlier piece, the commerce clause argument may have been weak, but I thought it made the most sense. 

If you just look at it logically, Congress was never, as Kennedy snidely noted during oral arguments, “creating new commerce in order to regulate it.”  The commerce was always there to begin with.  All the law said was that everyone should have to pay for it.  Ironically, that has been the stance of conservatives for more than two decades.  Indeed, had Bill Clinton not been so stubborn he, and not Obama, might’ve been the one to get healthcare reform passed.  The uproar and protestations over this legislation have been phony from day one.

But the problem with the tax law angle is that it’s an even flimsier and more difficult argument to make and for two reasons: one, neither Roberts nor the solicitor general specified what type of tax it is; and two, you’re basically taxing people for not buying something.  Unless I missed something basic in my Intro to Economics class, a tax is levied on goods and services bought or imposed on income earned.  Neither was the case here.

So how can Roberts, in good conscience, call it a tax?  I suspect we’ll never know the answer to that question, any more than we’ll know the motive that drove him to go against his fellow conservatives and side with the liberal wing of the Court.  Maybe he finally saw the light and wanted to carve out some kind of legacy for himself.  Or maybe it was far more basic than that.   Last March, after the oral phase, I suspected the key to this ruling might rest with Roberts and not Kennedy.

Despite his obvious ideological bent, Roberts is keenly aware of his position as Chief Justice.  Upholding the mandate would permit him to portray himself as above politics.  It would also allow him to concentrate his efforts on the more nefarious matters that await this Court down the road.  The environmental and civil rights laws that many conservatives decry as overreach will no doubt be re-visited by the judicial branch.  These cases are the real prizes for the Right and they badly want them.  The healthcare debate, while good theater for the wingnuts who listen to Mark Levin, is mere window dressing in the grand scheme of things.  If Roberts punts on the mandate but gives them the rollbacks they want on the other issues all will be forgiven.

Of course only time will tell if the Right actually forgives him, or, for that matter, whether the Court’s last two rulings are a harbinger of things to come or just a temporary reprieve from what many legal analysts consider the most activist conservative bench in the country’s history.  Lest we get too optimistic, these justices still have the blood of Citizens United on their hands, so I would hold off on any Brennan comparisons.

What we do know is this: Were it not for Roberts’ defection, the whole law would’ve been tossed.  The dissenters were clearly of the mind that the lack of a severability clause prevented the Court from picking and choosing which provisions survived and which got booted.  Maybe that’s what finally pushed Roberts over the ledge.  At least that’s the opinion of David Frum.  “The jointly-written dissent was intended to be majority opinion. Any informed reader would reach that conclusion after the first three pages.”  Indeed a careful read of both Roberts’ opinion and the dissenting opinion clearly reveals a schism that ultimately proved irreconcilable.  No matter how politically expedient it might’ve been, it seems Roberts just couldn’t agree with his fellow conservatives that the whole statute needed to be scrapped.  It was that split that brought forth the opinion which allowed it to survive intact; well, almost.

In fact the only casualty involved the Medicaid provision.  The Court ruled 7 to 2 that states which choose to opt out cannot be denied their existing Medicaid funding as a penalty; only those funds needed for the implementation of the law.  Admittedly problematic, but remediable nonetheless.

So what’s next?  Well, much as I hate to rain on a victory parade (actually I kinda enjoy it in a perverse sort of way) I wouldn’t get too carried away over this ruling.  Don’t get me wrong, it’s nice to win one now and then, but make no mistake about it, the ACA survived by the hair of its chinny- chin-chin.  Indeed in can be argued that were it not for the fact that Antonin Scalia and his cohorts were such dicks, it’s more than likely the mandate would’ve been gone and we would’ve been left with a law with no enforcement provision and no funding mechanism.   Chew on that.  The last thing progressives should be doing is gloating.  A little humility is in order.  To quote John Boehner, let’s not “spike the ball.”  There’s a lot of work ahead.

Already Republicans are in full court press, calling the mandate the largest tax increase in history and accusing Obama and the Democrats of lying to the American people about what it was.  More than ever they are frothing at the mouth to repeal this baby.  The painful truth is that, even with this win, the Administration is still stuck with a mandate which, though legal, is hated by conservatives and progressives alike.  Obama has some ‘splainin’ to do over the next few months to keep Mitt Romney from framing yet another wedge issue for the fall elections.  And while narrative building has never been his strong suit, he’s going to have to connect the dots he didn’t connect last time around and sell a law that many people like, few comprehend, and which, even under the best of circumstances, is still quite flawed.  A daunting task to be sure.

And then there’s the June jobs’ report which will be out next week.  Another anemic performance could spell trouble for the Administration.  The President is right.  It’s time to “move forward.” The economy will have more to say on who wins in November than any court case settled in June.  Besides, the best way to ensure that the healthcare law remains the law of the land is for Democrats to prevail this fall.

I’d call that a pretty full plate.

Links: http://news.yahoo.com/blogs/ticket/supreme-court-issue-obamacare-decision-135554880.html

http://www.thedailybeast.com/articles/2012/06/29/scalia.html

http://www.spiritofaprogressive.blogspot.com/2012/03/oral-cavity.html