While most fiscal conservatives are looking to crucify Chief Justice John Roberts this morning for casting the deciding vote in the Supreme Court's 5-4 decision to uphold the all of the provisions in the Healthcare Reform Law, I would like to congratulate him on his creativity, his craftiness and his cunning.
It took a very creative legal mind to find authority in the Constitution to uphold the Individual Mandate. Nobody even considered that Congress would have the right to enforce the mandate under its power to collect taxes. The Solicitor General who argued the case on behalf of the Obama Administration didn't even make that argument before the High Court! And why would he? Didn't the President and all the Congressional Democrats spend an entire year telling everyone that the "penalty" for not having health insurance was NOT A TAX?!?! Ironic isn't it, that the fact that it is a new tax actually saved the mandate in the end.
And Chief Justice Roberts is a crafty fellow as well. He also wrote into the decision that while Congress can force states to take more money for the expansion of Medicaid programs--it cannot penalize states that fail to fully comply, by taking away Medicaid funding. In that provision, the Chief Justice is giving "Red State" governors who realize that the money from Washington won't come within the width of the Pacific Ocean of covering the added expense of more Medicaid enrollees some protection. Unlike the Federal Government, states can't operate trillions of dollars in the red--or print more money to pay their bills--so Robert's ruling should spare taxpayers monster state tax increases to comply with all facets of the law.
And finally, Chief Justice Roberts showed great cunning by punting the ultimate decision on whether all of the Healthcare Reform Bill is actually going to take effect. I mean, who wants to be known as the "Guy Who Killed Millions Of Uninsured Americans"? Instead, the Chief Justice chose to throw it back in the lap of American voters--who can now use the 2012 elections as a referendum they really didn't get before this bill was passed.
And this time around, we know that the mandate is--by law--a new health care tax--and Chief Justice Roberts is the man who put that hairshirt on President Obama to wear. Unfortunately for Republican, their nominee is wearing the same hairshirt (he preferred to call his individual mandate "penalty" a "fee" in Massachussetts. However, I'm sure the GOP will have plenty of commercials ready to go this fall pointing out that Tammy Baldwin "voted in favor of the new Health Care Tax" or that she "supported the largest tax increase in American history--during one of the worst recessions in American history". The guys at Politi-Fact must be going nuts over this--because now they have to give all of those ads a "True" rating. After all, if it wasn't a tax, it wouldn't be constitutional!
So well played, Chief Justice Roberts. Well played.