As you have likely heard, Romneycare no, Obamacare, no, the ACA has been upheld by the Supreme Court, with Chief Justice Roberts casting the deciding vote with the liberal block. Health policy implications aside, there are some truly delicious politics here:
Obama did not support the mandate in the ‘08 primary. In fact, he was the one Democrat to oppose single-payer or mandated health insurance (for which he took much heat from the left). He got behind the model, famously developed by the conservative Heritage Foundation, when it became clear that it was the model with the best chance of passing Congress. But, remember how absent he was from that legislative action (for which he took much heat from the left). But one thing he made it clear in the run up to the fight: don’t call the mandate a tax! Then, the last two years happened….
Today, we learned that Chief Justice John Roberts (appointed by noted left wing activist George W. Bush) disagrees with that. He called the mandate penalty a tax, and on that basis voted with the liberal block to uphold. No one questions the Government’s power to tax. Well, except this guy.
The significance of his vote is that it expands the Government’s power, in functional terms, to tax. That’s pretty darn important. However, my friend who clerked for the Chief a few years back noted in a call this morning that Roberts tends to give with one hand and take with the other in big decisions— perhaps reflective of the instinct towards balance and conservatism. In this case, it should be noted that five justices ruled that the Government did NOT have this power under the commerce clause— which is a big victory for conservatism.
Mitt Romney, on whose Massachusetts model the law is clearly based, has some extraordinary days of spin ahead, particularly given that it was the staunchly conservative Roberts (and not the fence-riding Kennedy) who cast the deciding vote. Romney’s job is made harder by stuff like this. So here’s a tip from a “Washington Insider:” look at how much money Mitt raises online in next 48 hours. If it’s more than $10MM, then we’ll have a great race this fall. If less, it means serious problems for the campaign.
But the GOP should not be too dejected. If the mandate penalties are indeed a tax, then it only takes 51 votes to overturn. If you thought the mid-term elections were distressingly nasty… get ready to lose your innocence for good this fall when the GOP aims its sights at the Senate. Truly.