After getting home from work last night, I set off on a reading junket to see what some smart people were saying – and I was more than a little surprised to see some positive and even optimistic interpretations of the decision from a libertarian or conservative perspective. A few folks who were most definitely not of the “progressive” persuasion even went so far as to admire Justice Roberts' opinion – and a few “progressives” saw the same issues as dangers for their side.
At this point I can't tell whether these are after-the-fact rationalizations of a bitter decision (lipstick on a pig, so to speak), or if Roberts actually has done the non-progressive world a favor with this decision. The ideas certainly are interesting, however. At the end of this post is a collection of links to the original material I read through. The main lines of hopeful thoughts I read about (in no particular order):
- The part of the decision that struck down the mandate but turned it into a tax is the first Supreme Court ruling that sets a precedent for limiting Congress' powers under the commerce clause.
- The mandate/tax has the effect of shifting a huge part of the cost of medical care to younger people, which you'd think would motivate younger folks to fight the law.
- The ruling materially raises the probability that Obama will be defeated in November, both by boosting Romney's appeal and by re-energizing the Tea Party and other limited-government folks.
- The ruling materially raises the probability that Republicans will have the Presidency, the House, and the Senate in January 2013 – and therefore materially raises the probability of an ObamaCare repeal.
- Tax bills (which ObamaCare now is) can't be filibustered. This vastly decreases the political difficulting of repealing ObamaCare: the Senate now needs just 51 votes instead of 60.
- The transformation of the mandate into a tax means the ObamaCare bill is imposing a new tax. The Constitution requires any such bill to originate in the House of Representatives; the ObamaCare bill originated in the Senate. This presents the possibility of a Constitutional challenge on much firmer grounds than the challenge just ruled on. Some are proposing that Roberts did this intentionally, so the law could be struck down in a bipartisan fashion.
- The part of the decision ruling that terminating Medicaid funding to states that didn't participate in the Medicaid expansion is actually a significant reining in of federal power over states – and could lead to challenges of other laws that diminish state's rights.
The pile o'links:
- Medicaid impact
- More Medicaid impact
- Commerce clause thoughts
- More commerce clause thoughts
- Taxes and generation cost shifting
- The activity/inactivity line of argument
- Young people screwed by ObamaCare
- Commerce clause precedent-setting
- Even more Medicaid impact
- An act of great cunning?
- Good news for Romney
- Yoo and Epstein podcast
- The gift and the repeal pledge
- Even more commerce clause thoughts, plus politics
- Political genius?
- Major limits on Congress' power
- Lost the battle, won the war
- Everybody wins
- A weird victory for Federalism
- Roberts' Gambit