The Day After


Surprise! We didn’t get our preferred outcome yesterday, but the sun came up this morning anyway. And I don’t have any more thoughts (intelligent or otherwise) on the Obamacare ruling.

Fortunately, Dr. Krauthammer does. Taking a sober look at the long view, he explains how this was Justice Roberts’ “Nixon to China” moment:

It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.

Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.

Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in.

Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief.

I’m waffling between feeling this is “just about right” vs. “pretty thin gruel”. But don’t take my word for it – read the whole thing.

20/20 HINDSIGHT UPDATE: Well, my BS meter went clear past “pretty thin gruel” to “CRAP SANDWICH”. This is a stupendously convoluted decision that defies logic, particularly from a Chief Justice who claimed to be a constitutional originalist.

To wit: on the very first day of oral arguments, the court ruled that ACA was specifically not a tax. This was the entire reason the rest of the case was heard, because if it they’d determined it to be a tax, then the case would’ve been booted until at least 2014. This is because one cannot claim damages from a tax until it’s actually been collected.

So from that initial judgment, how does one arrive at the conclusion that ACA is something they’d previously determined it isn’t?

If that were really the case, then shouldn’t the entire decision have been stayed (or whatever the legal  beagles call it) until the full law went into effect?

Such is the pretzel logic of the credentialed elite.

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