There is some excitement that oral arguments are going well for opponents of Obamacare. Though oral arguments are not perfectly indicative of how the Supreme Court will vote in the end, there is some cause for guarded optimism. That being said, even if the Court completely strikes down Obamacare, it will be something of a hollow victory.
Don’t get me wrong. There is no other correct course of action for the Court to take than to strike down the individual mandate and thus effectively kill Obamacare. It is one of those remarkable monstrosities that happens to be both bad policy and unconstitutional. The problem is that something this monumental is essentially being decided on the whims of a single Justice. How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?
I don’t mean to be flip, but it feels like we’ve taken a very wrong turn somewhere along the line. That this abomination is even before the Court in the first place is a worrying sign of how a significant portion of the country views the federal government and its role in civil society. Democrats have made mincemeat of the commerce clause, as indeed they have done since the New Deal. It may have been cute once upon a time when they were telling some poor farmer that his refusal to buy bread and instead consume his own home-grown wheat somehow impacted interstate commerce. At least then they were actually talking about commercial activity. As it took Anthony Kennedy, of all people, to point out, the White House had to create a commercial activity in order to justify federal regulation to control it.
So we have a federal government that no longer recognizes any significant limits on its authority, and a Supreme Court where four of the nine Justices have given their complete consent. Oh thank our lucky stars that a majority of the Court doesn’t think that the U.S. Constitution is a fancy piece of toilet paper to disregarded when it inconveniences the larger political agenda. This is “progress.”
To make matters worse we have a pundit class that is putting forward the idea that whichever side loses in the Supreme Court gains politically. Several commenters on the left, frantic that their baby is going down in flames, are going all Homer Simpson in declaring that the Court striking down Obamacare would benefit Obama. “It’s just a little bit wet, it’s still good, it’s still good.” Similarly, some right-leaning pundits think that a Court ruling fundamentally upholding Obamacare will help with the Fall election.
I won’t get into these political calculations, but I do think they are wrong. But even if they are right, what does it say about our politics that losing a monumental political battle is somehow productive because it will help win the next election? If Obamacare is defeated, one of the most important legislative victories the Democrats have ever achieved will have gone up in smoke. It’s possible that parts of Obamacare will be upheld, but it’s difficult to see how the essential nature of the program can remain intact if the individual mandate is struck down. Even if Obama is re-elected, he likely faces a Republican House of Representatives, and possibly even a Republican-led Senate. Even if the Democrats retain control of the Senate, there is no way they come close to the 60-seat majority that enabled them to overcome Republican opposition the first time. There is no second crack at this for Obama and his party.
If Obamacare is upheld and a Republican wins this Fall, what then? The Republicans will likely hold the House regardless of who wins the presidential election, and the Senate will almost certainly be in their hands if a Republican wins the presidency. Again, though, they will not have a filibuster-proof majority. Even if the Republican in the White House is one with a somewhat firmer spine, it will be difficult to fully repeal this legislation. And if we wind up with a president whose resolve is, shall we say suspect, then repeal becomes even much more difficult.
So what does political victory get you in either case? Not much, at least not with respect to the major issue of the day. Now I think Republicans fare a better chance of repealing Obamacare than the Democrats would have of implementing a backup plan, but both face steep odds. Now I’m not suggesting that it’s unimportant to win elections. You can only accomplish your aims by winning elected office. But if winning elections are the only aim, even at the expense of losing a major political battle that might not be reversible, then what is the point?
And that finally brings us full circle to the Court. Some Romney supporters are harping on this case to
blackmail sway uncertain conservatives to vote for their man this November. Just put aside those reservations and misgivings, hold your nose, and vote for the guy with the nice hair. Because if you don’t, the Court will be in Democrat hands forever. Forget for the moment that the next term of office may witness no turnover whatsoever, this about says it all for team Romney.
For those that support Romney, this election is about nothing other than putting an –R in the White House. All other considerations are nothing to them. Merely winning the election is the endgame, as though presidential elections are just like the Super Bowl and the only thing that matters is seeing your team win.
It’s as though Romney supporters fell asleep in November 2008 and woke up in January 2011. They missed all those intervening developments like the birth of the tea party and the rejection of Obama’s policies. To them, America remains a leaning-left country, and the only way to win elections – and winning elections is all that really matters anyway – is to play nice and not kick up too much of a fuss.
There is absolutely no concern on the part of Team Romney for the greater implications of this race. Their entire focus is on short-term victories, but few if any of the Romney supporters seem to appreciate the greater crisis facing this country. So they harp on the importance of having a president who will be there to nominate the right justice (ignoring the fact that trusting Romney to nominate the “right” justice is slightly naïve to begin with), meanwhile they don’t even seem much concerned with the fact that America’s destiny is being placed in the hands of the Court.
Romney supporters are the kind of people who like to treat the superficial elements of a disease without attacking the root illness. As long as they’ve got some lip balm they can ignore the herpes. Sure, you’ve put off the disease out of your mind for a little while, but you’ve done nothing to wipe it out of your system for good.
A Romney victory in November means we’re not fundamentally serious about changing the culture of this country. And so we’re going to have to keep putting our fate in the hands of a few Supreme Court justices. Which mean we have to keep just voting for Team Elephant in the Fall, regardless of the candidate’s other faults. And the system keeps perpetuating its own demise.
But other than that, I’m really happy to see that Obamacare might be on its deathbed.