It's a tax: Delegitimization isn't a Supreme Court problem

Consider this our latest entry in the Great Hunt for Silver Linings series, post-Mandate-mas.  I’ll gather three wise men to muse upon the impact of the Supreme Court ruling, two of whom believe silver linings are easily found — and one of which believes the cloud to be even darker than we realize.  Let’s start with Glenn Reynolds, who moves from his Instapundit home today to argue at the Washington Examiner that the entire ObamaCare arc didn’t delegitimize the Supreme Court, as critics warned — but it did do real damage to the legitimacy other two branches of government:


With the focus on the Supreme Court’s opinion, it’s easy to forget the sleazy way that Obamacare was passed. But the Supreme Court itself points out one key aspect. Though President Obama pooh-poohed the idea that the mandate was a tax, the Supreme Court found that, in fact, it was. In an extended discussion with George Stephanopoulos back in 2009, Obama was adamant …

Obama had to reject that notion, since otherwise Obamacare’s tax increase would have represented a massive middle-class tax increase indeed, and one that violated his promise that families earning less than $250,000 a year would see no tax increases of any kind under his plan. Now the Supreme Court has basically said he lied.

Presidents lie?  That’s not entirely novel, of course, but this was the man who ran on nothing but Hope and Change.  Without that promise of reform, what exactly was Obama’s appeal?  Two years as a Senate backbenchers, preceded by seven years as a backbencher in the Illinois state legislature?  Speaking of legislatures, Congress didn’t exactly cover itself in glory, either:

And if the executive branch’s treatment of Obamacare was characterized by lies, the legislative branch didn’t look any better. Obamacare, remember, was rammed through in the teeth of popular opposition; when the special election victory of Scott Brown meant that Democrats no longer had a filibuster-proof majority in the Senate, the bill was squeezed through via a “reconciliation” procedure under the fiction that it was a budget bill, not substantive legislation.

Add to that the intense role of lobbyists and special interests in drafting the law, Nancy Pelosi’s famous remark that we’d have to pass the bill to find out what was in it and the rampant vote-buying (remember the “Cornhusker Kickback”?), and we have a process that was dishonest, corrupt and far less legitimate than any conceivable Supreme Court ruling on Obamacare.

So, at the end of the day, the legitimacy question rests not with the Supreme Court, but with Congress and the president.


We may not approach the same level of skepticism about government and the institutions of a democratic republic seen after Watergate, but we’re getting close.  For that, Obama and the Democratic leadership of Congress have only themselves to blame, although Republicans who controlled Congress from 2001-6 and broke their promises for spending restraint and smaller government shouldn’t be let off the hook, either.

Michael Barone, also writing at the Examiner, thinks that the court decision will spark a new energy into the conservative renaissance, now that the only option to opposing ObamaCare is the upcoming election:

Unhappy conservatives grumble that Congress can get around the declaration that a mandate is beyond Congress’ enumerated powers by labeling it a tax — or just by relying on five justices declaring it one.

But there’s usually a political price to pay for increasing taxes. That’s why Barack Obama swore up and down that the mandate was not a tax. It’s why Democratic congressional leaders did not call it one.

Chief Justice Roberts’ decision undercuts such arguments, now and in the future. Members of Congress supporting such legislation will be held responsible, this year and for years to come, for increasing taxes.

The backlash to the “it’s a tax” revelation will be instructive, if one takes shape in any significant form.  If not, the lessons might not be learned at all, but if it does, it will — as Barone says — make a great argument against Democrats in Congressional elections for years to come, and certainly in this one.  But more importantly, Barone argues, ObamaCare has pushed the pendulum of public opinion firmly away from big government, which had its own brief renaissance in the panic following the crisis in 2008:


Obama followed the New Deal historians in portraying history as a story of progress from minimal government to big government and in arguing that economic distress would make Americans more supportive of big government policies.

The unpopularity of Obamacare and the stimulus package have proven the latter assumption wrong. Most Americans are skeptical about the supposedly guaranteed benefits of centralized big government programs.

Finally, let’s look once more to the judiciary.  David Bernstein at SCOTUSblog acknowledges that conservatives lost when the court upheld ObamaCare on tax-power grounds.  He sees this as a last gasp of liberalism, though, with the court signaling a transition towards a conservative, limited-government approach — assuming that Mitt Romney wins the election:

Now that the Court has voted 5-4 to uphold the ACA, I want to suggest a different historical analogy, also focusing on 1936.  What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime? …

As important, the ACA litigation shows that ideas once deemed beyond the pale in “respectable” legal circles have now become mainstream among elite conservative lawyers.  Indeed, though the individual mandate was upheld, the five conservative Justices expressed a willingness to put real, substantive limits on the scope of the Commerce power (Lopez and Morrison were easily evaded). The five conservatives, plus two liberal Justices, also endorsed substantive limits on the Spending power, the first time such limits were applied to Congress since the 1930s.

Like the other Justice Roberts in the 1936, the current Justice Roberts unexpectedly voted with a 5-4 majority to continue the old regime.  But while the Justices continued to dance in 1936, the music had died.  Not only did the first Justice Roberts soon become a consistent vote to uphold New Deal legislation, but a series of FDR appointments unleashed a wave of liberal jurisprudence that ultimately went far beyond the Progressives’ original goal of keeping the courts out of economic matters.

The conservatives on the Court have already rewritten the constitutional law of campaign finance, sovereign immunity, and more, but only tenuously with five vote majorities.  A 7-2 or better majority would expand those rulings, but, more important, expand conservative jurisprudence into areas not currently considered in play.  What would happen to the Contracts Clause with a 7-2 conservative majority? Could vouchers for religious grade schools become  mandatory, not just permitted?  What powers now denied to the states would be allowed, and what powers now allowed to the federal government would be denied? Or maybe disputes between more “activist” and less “activist” Justices, and between libertarian-leaning and more authoritarian conservative woulds mimic the infamous Douglas-Black-Frankfurter debates of the early Warren Court.  The Old regime would be overthrown, but progress toward affirmative conservative goals for an indefinite period of time.


We can only hope, but this points out the urgency of winning this next election.  Not only is the only and final opportunity to repeal ObamaCare, but the direction of the court over the next few decades does hang in the balance.  If by upholding ObamaCare the court changed the political dynamic and put Mitt Romney on the path to victory by enraging and engaging Tea Party activists, and if a President Romney gets a couple of conservative jurists on the Supreme Court, then Bernstein might well be correct.  But the only way to get to the only silver lining from this decision is at the ballot box — which may be the best outcome for a democratic republic anyway.

Reason TV’s Nick Gillespie interviewed Peter Suderman on Thursday, who also found some silver linings:


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