Before my grandfather, the conservative philanthropist Henry Salvatori, starts cursing at me from above, let’s be clear: Chief Justice John Roberts certainly hosed Republicans with the Supreme Court’s ruling on Obamacare.
And yes, Obamacare is a beyond-massive tax hike to the tune of $500 billion-plus over the next 10 years. But take heart, conservatives. It could have been much worse.
There are at least three positives to the court’s ruling.
First, Roberts protected the integrity of the court from charges it acted on ideological grounds alone. The court left in place a law President Obama will have to answer to voters for in November — an unwieldy, frighteningly expensive attempt to solve the very serious American healthcare problem.
No longer can the left say with a straight face this is a conservative court. Just in recent days, it has handed President Obama two significant victories — it struck down three of the most controversial provisions of the Arizona immigration law and upheld Obamacare.
The Roberts Court has established itself as an entrenched court with potential swing votes in both directions. It has proved it has and will call balls and strikes, just as the chief justice promised during his confirmation hearings. More than anything, like it or not, the Obamacare ruling preserves the integrity of the court.
Conservatives should thank Roberts for this. The street credit he purchased on Thursday will come in handy at a later date — such as when it comes time to limit Congress’s power to assess taxes.
Secondly, we now have the foundation for a bright-line rule on how far the Commerce Clause can reach. As Brad Plumer at The Washington Post wrote, “Basically, the court ruled that Congress can regulate existing interstate commercial activity, but it can’t directly force people to enter into a market (by, say, requiring them to purchase health insurance).” To your average Facebook legal pundit, this might not seem like much. But it is a terrific start toward achieving a long-held and valuable limited-government goal. The only question is how much further this court will go to limit the expansive power of this legal instrument. One hopes much further.
Finally, by calling the mandate a “tax,” Roberts has handed conservatives a game plan for repeal. Obviously, Mitt Romney must win the White House, and Republicans need to come away from November with control of both houses of Congress. This trifecta will be hard to achieve, but if Republicans can achieve it — thanks to the ruling that the mandate is a tax — they will be able to bypass the 60-vote requirement to cut off debate in the Senate.
As a tax, it must originate in the House and can be considered in the Senate under a “budget reconciliation” measure, which requires only a simple majority for passage. Roberts’s ruling, in other words, makes it 10 Senate votes easier to repeal Obamacare.
This means we need not act incrementally against the law with executive orders and other devices to slow implementation. We can press for complete repeal. We can force candidates seeking our votes to support it on the campaign trail. We can hold their feet to the fire the minute they take office.
It won’t be easy. The law’s unpopularity aside, Republicans still must control all three elective branches in Washington to achieve their goal. But the goal, at least, is now firm, the urgency is clear and the means to victory are readily apparent.
And none of that was true before the court’s ruling.