Hollow Victories

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.

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Dante alighieri


  1. For those that support Romney, this election is about nothing other than putting an –R in the White House.

    Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Reality is not always a pleasant thing to contemplate. But part of being conservative, I think, is a willingness to face up to reality even when it’s not pleasant. One may not like the prospect of having to choose between Romney and Obama in November, but that’s reality. Calvin Coolidge isn’t going to be on the ballot.

  2. “How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?”

    The weeping you hear is from the Founding Fathers in the next world.

  3. Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Thus demonstrating why you, and so many other Romney supporters, continue to miss the point.

  4. “Calvin Coolidge isn’t going to be on the ballot.”

    Yeah, but the Mormon Richard Nixon probably will be. I’ll vote for him in preference to Obama, but other than Romney not being Obama, I’ll be hanged if I can think of anything else Romney has in his favor from a conservative point of view.

  5. The Supremes don’t necessarily have the “last say.” If struck down, in part or in its entirety, Obamacare could still come back in another form as devised by Obama and a complaisant Congress. Also, given that hundreds of entities have been granted exemptions to the law, that language could be broadened to include certain individuals or small businesses, thus debunking the false notion that “everyone” must buy health care or face a stiff penalty. In short, the lawyers and politicians will find a way toward a “compromise” that will defuse the issue before November.

  6. 3 points:

    (1) “… happens to be both bad policy and unconstitutional …”
    But you repeat yourself. If it’s unconstitutional, it is by definition, bad policy. 🙂

    (2) Whatever the faults of Anthony Kennedy (and you know my opinion on the man, and I am, to put it mildly, not a fan), he has throughout his career on the Court been fairly solid on 10th Amendment issues. Not that his swing-vote squishiness doesn’t give me some pause, but I’m not as worried about how he will vote on this issue as I will be when the Court is inevitably called upon to define same-sex “marriage” as a so-called “fundamental right”. I’m actually slightly more concerned how Roberts and Alito will vote.

    (3) And THIS is the REAL implication for the upcoming election. At this juncture, the judicial nomination argument is one of the key talking points Romney’s supporters are using to try to sway those like me who are going to be voting 3rd party this fall. Let’s suppose that it’s Roberts and/or Alito (in addition to or instead of Kennedy) that joins the 4 liberals to uphold ObamaCare. Suddenly, the “But we HAVE to vote for Romney to get conservative Justices” argument becomes moot. If either or both of the two most recent Supreme Court Justices that were appointed by a conservative GOP president with approval by big GOP majorities in the Senate can’t be counted on to vote against the constitutionality of ObamaCare, then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.

  7. “then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.”

    Why Jay? Roberts and Alito from all intents appeared to be solid conservative nominees, and thus far they have voted that way. If they go rogue now we should hand over to the Democrats the Supreme Court for all eternity? That does not make any sense to me.

  8. You make some very necessary points Mr. Zummo. I would simply add that the election of Barrack Obama is a reflection of us, our society, our governance, and our fondness for dependence (as opposed to liberty). The greater concern is whether we have reached the tip point. While many argue politics, to his credit Obama has advanced the statist agenda across the board.

  9. Come on, “blackmail”? I haven’t heard anything like that. I mean, by those standards, someone could say that your raising doubt about Romney’s SCOTUS nominees is an attempt to blackmail Romney supporters into voting for Santorum. But that’d be nonsense, because you’re not blackmailing anyone; you’re trying to present your preferred candidate in the best possible light, which is a perfectly reasonable thing to do. Remember the time-honored truth that the Paulbots never seem to recall, that antagonism is rarely persuasive.

  10. Yeah, I know, I’m just getting a bad taste in my mouth from all this. The article and some comments tended to lump all Romney supporters together as the enemy, a voting bloc composed entirely of RINO’s.

    Years back, volunteering for a campaign, I remember being told to never alienate anyone, because even if the voter wasn’t supporting your candidate, he could be on the fence about a half-dozen other races further down the ticket. It ticks me off to see assumptions of bad faith being made by supporters of all four candidates against supporters of their opponents. And to top it off, there’s near-complete agreement about the issues. Most Republican primary voters only disagree about which candidate would best promote a pro-life, low-tax, internationally secure agenda. They weight issues differently, and make different calculations about effectiveness, experience, and electability, but they agree on 90+% of the platform.

    Every party goes through this in the primaries, and by November I hope that heated words spoken in March will be forgotten. I’m just worried.

  11. Don, the point I’m making is that if the GOP-nominated Justices can’t be counted on to strike down a monstrosity like ObamaCare, then the argument that we just HAVE to vote for Republicans because of the Supreme Court will no longer prove sufficient to justify voting for just any Republican, especially one like Mitt Romney.

    I mean, seriously. If even a majority of GOP nominees can’t be counted on when it comes to the REALLY BIG issues like abortion and ObamaCare, then there’s really not much left to justify conservative voters continuing to do what we’ve been doing.

  12. I understand your argument Jay, but it still does not make any sense to me. We are going to have a Supreme Court and its rulings are going to have a vast impact on our lives. I see no reason to hand it over to the Democrats forever. Overall I have found the Republican justices appointed since Reagan far more congenial to my views than those appointed by the Democrats, to say the least. A Souter and a Kennedy are arguments for better screening of appointees, not an argument for having someone like Obama in the White House forever to keep making appointees like Breyer and Ginsburg until the rulings are always 9-0 in favor of treating the Constitution like toilet paper.

  13. Don, I concede that a the GOP nominees are, on the whole, better than Democrat nominated judges. That’s not debateable. But, for the better part of 3 decades now, Supreme Court Justices have been trotted out as one of the, if not THE, main reasons to vote for the Republican nominee, regardless of whether that Republican nominee was one that was otherwise suitable.

    ALL I’m saying is that, yes, a Mitt Romney is likely, on the margins, to nominate better judges than Barack Obama. BUT if those judges are unlikely to do things like overrule Roe or strike down ObamaCare, then the argument holds MUCH LESS weight, and becomes not as strong an argument for voting for Mitt Romney.

    So, in the situation in which we find ourselves – a likely nominee for President that is wholly unacceptable to me, the argument that we just HAVE to vote for him because he will nominate judges who will … do what? Overturn Roe? Strike down ObamaCare? Again, it is a lot less compelling argument on behalf of the GOP nominee when the judges nominated, while better than what we might expect from the Dems, can’t be counted on when it comes to the BIG issues that are most important to me.

    Now, once again, my argument is only pertinent if there is a defection from, say, Roberts and/or Alito to uphold Obamacare; but if none of the GOP-nominated Justices (apart from the squish Kennedy) votes to uphold ObamaCare, then the issue of judges will actually strengthen Romney’s hand: “See, if we had more Justices like Scalia, Thomas, Roberts, and Alito, we could stop even MORE of this kind of big-government nonsense.”

  14. I disagree with Paul’s assessment of the Commerce Clause. Words matter, and the words used to assign to Congress the power to regulate interstate commerce can easily be understood to be very broad in their application. Just because the Framers did not envision (or presumably favor) such broad application, does not mean they didn’t create the architecture that allowed for it (even if they didn’t mean to!). It is not ridiculous to maintain that Congress has the power to regulate the health care component of our national economy by creating a mandatory insurance system, which is not to say that I think that is the better argument — actually I don’t.

    I do favor a mandated insurance system, but only at the state level. It is necessary to prevent the free rider system we have today, where thousands of people choose to go without insurance knowing that the government (i.e, the taxpayers) will pay for their necessary care. That said, such a mandated system should cover only truly necessary care that is sufficiently expensive to warrant risk sharing (i.e., insurance). Optional care and routine care that is not so expensive that it cannot be budgeted should not be covered by mandated insurance.

    Insurance has its place in health care, but its current role is not rational. It is a by-product of a tax system that encourages employers to compete for employees by providing unnecessarily rich coverage, which leads to serious inefficiencies. The user is two steps (employer and provider) removed from the payor. Accordingly, most people use health care services more aggressively because they do not bear the lion’s share of the cost of such services in any perceptible way. If we removed the tax favored status of health insurance, it would de-couple from employment thereby allowing a more robust and mature market to develop for individuals (just like property, casualty, and life insurance); families would then purchase insurance that rationally meets their needs, which in most cases would be affordable high deductible policies that cover any necessary catastrophic care.

    A federal (not state) insurance mandate may well be unconstitional, but it is not necessarily bad policy if (i) designed to prevent free riders and (i) limited in coverage appropriate to insurance. Obamacare is not remotely so limited. It goes in exactly the wrong direction by expanding the role of insurance rather than tailoring that role to its purpose.

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