US Republican presidential candidate Mitt Romney gives his reaction to the Supreme Court’s upholding key parts of President Barack Obama’s signature healthcare overhaul law on a rooftop overlooking the US Capitol in Washington June 28, 2012. Romney said on Thursday that the American people must defeat President Barack Obama in order to overturn his landmark healthcare overhaul. REUTERS/Jonathan Ernst
This may be the rare instance where what is good for the country is good for Mitt Romney. While good economic news tends to benefit President Obama and hurt Romney, good legal news could help them both. Mind you, if you actually believe what you say, then if you have been saying the Affordable Care Act is unconstitutional, you should be disappointed by its being upheld. But everyone knows that Romney doesn’t believe anything, and many Republicans don’t really believe the individual mandate is unconstitutional. From a purely political perspective, Romney and his party have a rallying cry for their base. They will argue that only electing a Republican president and Congress can undo the ACA, since the Supreme Court won’t.
“What the Court did not do on its last day in session I will do on my first day if elected president,” Romney pledged in a press conference in front of the Capitol. He asserted that Obamacare is “not good law and it’s not good policy.”
“The American people have a choice,” said Romney. “If we’re going to get rid of Obamacare, we’re going to have to replace President Obama.”
At least top Republicans seemed to mostly realize their case was no slam dunk and that they should focus on their policy objection rather than complaining that the Court ruled incorrectly. “The president’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire,” said House Speaker John Boehner in a statement. “Today’s ruling underscores the urgency of repealing this harmful law in its entirety.”
Senate majority leader Mitch McConnell said:
Today’s decision makes one thing clear: Congress must act to repeal this misguided law. Obamacare has not only limited choices and increased health care costs for American families, it has made it harder for American businesses to hire. Today’s decision does nothing to diminish the fact that Obamacare’s mandates, tax hikes, and Medicare cuts should be repealed and replaced with common sense reforms that lower costs and that the American people actually want. It is my hope that with new leadership in the White House and Senate, we can enact these step-by-step solutions and prevent further damage from this terrible law.
RNC spokesman Sean Spicer told MSNBC, “In November the voters will have a chance to decide. Today we set up a stark contrast for this election. Mitt Romney has made it very clear that on Day One he will repeal Obamacare.”
Erik Erickson, who runs the influential Red State blog but is more of a partisan Republican actor than a member of the media, sounded similar notes:
First, John Roberts’ opinion seems to clearly suggest he wants to keep the Supreme Court out of political fights and was willing to destroy his reputation with conservatives to do it.
Second, this forces everyone to deal with the issue politically. The President and Democrats did, according to the Court, impose a tax increase. Because it is a taxation issue, the GOP now, should it take back the Senate, have even more grounds to deal with the matter under reconciliation, bypassing the 60 vote filibuster threshold.
It’s a big win for the President and a bad day for freedom. But we can deal with it. It is not the end of the world, the republic, or freedom. It just means we have to fight harder.
Social conservative groups focused on the actual substance of the ruling itself, and they were apoplectic. Family Research Council Legal Counsel Ken Klukowski made the following statement:
The Supreme Court has today given the federal government unlimited authority to use its tax power to require Americans to engage in specific commercial activity. The obvious implication is chilling: Uncle Sam can make you buy anything, at any price, for any reason. That’s why today, the American dream gave way to a real American nightmare. President Obama’s vow about ‘fundamentally transforming the United States of America ’ was fulfilled. The Supreme Court essentially said it cannot articulate any limiting principle on the power of the federal government.
By ruling that the law is constitutional, the Supreme Court gave the federal government the power to order private citizens to enter into contracts with private organizations and give those organizations their money. This ruling fundamentally transforms the federal government from one of limited and specified powers in the Constitution to an all-powerful central government with plenary power over every area and aspect of Americans’ lives from cradle to grave.
Concerned Women for America President and CEO Penny Nance said:
We are outraged to see the Supreme Court ignoring the constitutional limits the Founders put in place to constrain the federal government’s power over us. Shame on them!
With this decision they have given a blank check to the federal government, forever altering the constitutional concept of checks and balances that has been so crucial throughout our history.
The most extreme Tea Party senator, Rand Paul, inveighed against the ruling, even going so far as to challenge the Supreme Court’s authority. “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so,” he said. “The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right.”
Conservative television talkers fell into line, as they always do. Neil Cavuto of Fox News characterized the Supreme Court’s ruling as declaring “the Band-Aid is fine.” He seems not to understand the difference between constitutionality and optimal policy. He asked his boss, News Corp CEO Rupert Murdoch, whether the ACA will raise the cost of health insurance. Murdoch asserted that “it’s been shown” to increase the cost of insurance, and that it will create “a culture of entitlement” that is currently undoing Europe. Although Murdoch is not an expert on health insurance, Fox acted as if his analysis of the bill’s policy implications was inherently valid.
Fox seemed not to understand the ruling very well: the chyron said “Supreme Court Upholds Individual Mandate to Become a Tax.” Eventually they corrected it to accurately read: “Supreme Court Upholds Health Care Law Under Tax Clause.” They also cited polls showing a majority of Americans think the mandate is a violation of their individual rights, as if a legislation’s constitutionality were determined by popular vote.
Fox News also devoted as much time to discussing the 7-2 vote overturning some of the state mandates in the law. Anchor Megyn Kelly said, without any evidence, that this was “an easier call” for the justices than ruling on the mandate, because of the wider margin. How she knows that John Roberts, Ruth Bader Ginsburg and Sonia Sotomayor were not just as certain that the mandate is constitutional, she does not say.
Former Senator Rick Santorum, the Republican presidential runner-up, seems to have been driven to insanity by the ruling. He issued a statement that was shocking in its hysteria:
I believe so strongly that if we do not defeat President Obama this November and elect more conservatives in the House and Senate, our country’s future prosperity is at risk. We saw the absolute disregard President Obama showed for the Supreme Court’s ruling on the Arizona immigration law, that I have no doubt that he sees today’s ruling in his favor as a mandate that he can now do whatever he chooses by any means possible.
President Obama believes he is above the law, entitled to abusing his power to get what he wants, and willing to violate the constitution and the oath he was sworn to uphold. He has proven to be a very dangerous person to have this kind of power, and if he is not stopped this November, I am fearful that the make-up of this country as established by our founders will never be the same.
On Twitter, low-brow conservatives did what they always do, and equated anything they do not like with slavery. “This is the greatest destruction of individual liberty since Dred Scott,” tweeted Ben Shapiro, a syndicated columnist and editor for Breitbart.com. “This is the end of America as we know it. No exaggeration.” Right, no exaggeration at all.
Fox contributor Sarah Palin offered a typically caustic tweet: “Obama lied to the American people. Again. He said it wasn’t a tax. Obama lies; freedom dies.”
More intellectually serious conservatives took a more nuanced view. Jonathan H. Adler (no relation) of National Review, saw a silver lining in the fact that Chief Justice John Roberts upheld only the individual mandate to buy health insurance under Constitution’s taxing power, not the Commerce Clause. He argues that if Democrats have to sell such policies as taxes on the front end, they will have a harder time doing so politically. He writes:
While Chief Justice Roberts concluded the mandate is a tax, he also rejected the Commerce Clause arguments in favor of the mandate. This is significant, because it will limit the ability of Congress to adopt additional mandates in the future. No one will be able to claim such requirements are not a tax, and this will make such requirements more difficult to enact.
Equally important, the majority narrowed the Medicaid provisions substantially in a way that limits Congress’s power to impose conditions on the receipt of federal spending. Specifically, the Court held that Congress may attach conditions on the receipt of new money—in this case the Medicaid expansion—but that Congress may not condition the receipt of funds for separate, pre-existing programs on compliance with the conditions for the new program.
There was no possible bad outcome for Romney. However the Supreme Court ruled, Romney and his party had already won. The entire Republican Party and conservative movement had united behind the notion that a policy, the individual mandate, that many of them had supported right up until President Obama embraced it, is an unconstitutional atrocity. By repeating the argument ad nauseam they managed to convince much of the public and several District and Appeals Court judges. If no one had bought their loony argument in the first place this wouldn’t have much traction. But Romney could rest easy in the assumption that a few radical right-wingers on the Court would offer a dissenting opinion and lend credibility to the assault on the last seventy years of American jurisprudence. “I agree with the dissent,” said Romney. Now he will try to achieve what they could not: depriving 50 million Americans of health insurance.