Of Kidney Stones, the Obamacare Decision and Election 2012
I was primed today for the Obamacare Decision. I made certain that I had no court hearings today, and my appointments were not starting until 10:00 AM. Alas my third kidney stone decided to make its appearance at 7:00 AM. By 9:00 AM I was suffering from truly memorable pain. I stayed home from the law mines and had my secretary reschedule all my appointments except the 2:00 PM which was in the nature of an emergency. Nursed by my wife, and my doctor who opened his office early for me, God bless him, I soon had in my system very strong painkillers and Flowmax. By 1:30 PM I still felt like bayonets were probing my nether regions, but duty is duty and my wife drove me to my office for the 2:00 PM appointment. By the end of it at 3:00 PM I was feeling semi-human, the pain killers and the Flowmax working their magic.
As for the Obamacare decision, a plain text copy of the decision may be read here, the majority opinion by Chief Justice Roberts is both brilliant and wrong. His exposition of how th individual mandate violates the Commerce Clause is magnificent. His transformation of the mandate into a tax was clever and wrong. The idea that something is a tax if it is used as a penalty to compel behavior is imaginative and absurd. Go here to read an examination of the decision shorn of legal gobbledygook. Lost in the hubbub over this part of the decision is that Roberts had a majority of the court rule that states could refuse to take part in the Medicaid expansion, a key part of Obamacare, and that Congress could not punish them by taking away all their Medicaid money. Go here to read an analysis of that portion of the decision.
The dissent of Kennedy, Scalia, Alito and Thomas is also brilliant and correct. Here is there response to Robert’s transformation of a penalty into a tax:
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’”United States v.Reorganized CF&I Fabricators of Utah,Inc, 518 U. S. 213, 224 (1996) (quoting United States v.LaFranca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.
I am curious as to whether the dissent was originally a majority opinion. Did Roberts flip sides and why? We will find out in due course, but that may be years down the road.
The political consequences of this are clear. At a stroke the Supreme Court has converted the 2012 election into a crusade for conservatives. If Obama is re-elected Obamacare will remain a reality. The law is quite unpopular and the Court has now given Romney an issue that enthuses his base and will aid his fundraising. The Romney campaign raised a million dollars in the hours following the decision. The Obamacare decision is wretched constitutional law, but it is a godsend for everyone who wants to make certain that the author of Obamacare is looking for a new job in January.
Update I: Since the Obamacare ruling the Romney campaign has received 3.2 million dollars in donations and the day isn’t over. Thanks Chief Justice Roberts!