Friday, June 29, 2012

Nobody got what they wanted

I was one of those hoping that the Supreme Court would gut the (allegedly)Affordable Healthcare Act. That didn't happen. Recall, though, that even getting a Supreme Court challenge to Obamacare was regarded as a long shot. The long-term cure for that disaster always had to be Congress.  However, I don't think the decision is the unmitigated disaster for conservatives that some think. And I'm not alone.

For one thing, the cancerous growth of the Commerce Clause was stomped on in such unambiguous language even a non-lawyer like me can understand it. For added effect, the Necessary and Proper Clause was also included in the category of Things That Have Limits. Given that Congress has taken the attitude that either or both of these gave them permission to regulate us to death, this is a good thing.

Furthermore, the wording of the decision was that IF ACA was constitutional, the ONLY WAY was if the mandate was a tax. I remember vividly the contortions the Democrats went through to argue that whatever it was, it couldn't be a tax.  And if the bill that created the ACA originated in the Senate, and it is a tax, there will be another Supreme Court case coming up very soon to argue the entire thing--not just the mandate--is unconstitutional since tax bills must originate in the House. (Also clearly stated in the Constitution.)

The decision took a lot of people by surprise.  The full analysis needs to wait for emotions to die down, and I suspect there are some busy conservative politicians wargaming a number of scenarios to take Obamacare down. This could be much like the "miss" of the dive-bomber at Midway that damaged the Japanese flagship carrier's rudder so badly it could only turn in a circle...waiting to get bombed again. Damage was done. By itself it won't be enough, but it will help.

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