I was trying to think of something original to say about the Obamacare decision, because no one wants to read from me what they can read from many other sources on the internet. One thing I came up with, though, was the following:
If congress traditionally has been more eager to pass spending bills than enact tax increases — leading inexorably to ever-increasing deficits — then perhaps Justice Roberts did something good structurally for our future budget process. That is, if Justice Roberts got a majority to agree that Congress henceforth will be restrained from promiscuously exercising Commerce Clause powers — and henceforth will have to be up-front about its new spending initiatives and call them by their right names as tax increases, then they’ll shrink from spending so much — inasmuch as they will be afraid of retribution from an electorate which hates tax increases.
But then I read that Roberts’ opinion, WITH RESPECT TO HIS COMMERCE CLAUSE LIMITATIONS, was not explicitly joined by the four dissenting conservatives or the liberals (although Clarence Thomas made a favorable reference).
So I’m wondering if we’re left with the taxing power being expanded, but yet with no majority for limiting the Commerce Clause power.
Having said all of this, though, I also read that if the mandate is a tax, it may not be subject to the filibuster. From Marc Franc of the Heritage Foundation (h/t James Taranto):
“The mandate is now a revenue provision. Therefore, it is germane and not subject to a Senate parliamentary point of order to strike it from a repeal bill. The Senate’s filibuster process that would require a supermajority of 60 Senate votes to approve repeal is now irrelevant.”
So if Romney wins, and the GOP keeps the House and also takes the Senate, they will not necessarily have to have a 60 vote majority in the Senate to prevent a filibuster when they move to repeal Obamacare.
So when Roberts said it wasn’t the Supreme Court’s job to rescue the people from their political judgments, he may have intentionally “teed it up” for the country — that is, if the country is really serious about repealing Obamacare, it can take action for repeal (or reform) if it so chooses, and the path is relatively unobstructed. He may have been saying, “America: I’m just a judge. I respect the political judgments of the voters. Therefore, I’m loathe to overturn the decisions of the peoples’ representatives. In 2008 you meatheads voted for Obama and the Congress that voted for this dog’s breakfast of a bill. However: If you really don’t like this law, as it appears you didn’t based on your behavior at the polls in 2010, you are free to go to the polls again in 2012, and the filibuster won’t be an impediment to the efforts of your representatives to repeal or reform this piece of ____.”