Wednesday, July 4, 2012

Justice Robertsí resurrection


By KATHLEEN PARKER

WASHINGTON—The Supreme Court ruling on health care reform was like Palm Sunday in reverse: First they crucified Chief Justice John Roberts, then, upon his ruling, they hauled out the palm fronds.

"They" would be the various pundits, academics and others who let Roberts know in advance that if his court overturned "Obamacare," he would be revealed and remembered as a partisan hack.

But then: Hosanna, Eureka and Praise Jesus, Allah and Abraham! Roberts, a conservative, devout Catholic who probably doesn't personally like any part of this law, sided with the liberal wing of the court and upheld the legislation. Cue Handel's "Hallelujah" chorus.

And the skies parted, the tides receded and climate change became a sidebar to the blessings of Roberts' brilliance. Now we pause to caffeinate. What follows is a bit complicated, as bureaucracies would have it.

First, let's be clear: All arguments that the court is a far-right cudgel hovering over our delightful, evenhanded, fair-minded, nonpartisan democratic Republic are off the table. And celebrants of the court as just and true and lovely only when it suits their personal agendas should put their bumper stickers and sparklers in a lockbox.

Sometimes the law is what it is -- an ass. By communal consent, we tolerate outcomes that don't always suit us because the alternative of settling disagreements in the streets is less appealing.

One of several ironies of Thursday's ruling is that liberals are crowing about winning something they didn't actually win. Yes, the court ruled that Obamacare is constitutional, but not on the basis of the Commerce Clause, as proposed by the Obama administration. Instead, the court ruled that the individual mandate to purchase insurance falls under Congress' authority to tax and therefore is constitutional.

In other words, according to the high court, Obamacare constitutes a tax, which the administration and the legislation's authors repeatedly insisted was not the case. It is considered a tax because the government will "tax" those Americans who decline to purchase health insurance. This alone is the reason Obamacare passed constitutional muster.

Meanwhile, the Commerce Clause remains intact, which is cause for conservatives to celebrate. It is not as elastic as it might have been had the court embraced Obama's justification for the mandate. We will not, in fact, all have to eat broccoli, as Justice Scalia proposed in one of his characteristically humorous hypotheticals during oral arguments.

And what Obama insisted was constitutional was, in fact, in error. So says the court.

Here's what else the court said. When a tax is a tax, you have to call it a tax. No more pretense or doublespeak to fool or mislead people. This is a victory for all Americans, no matter what one's political leaning, because it is a victory for plain speak. If we could summarily order all politicians to say exactly what they mean, we would all be better off.

We also probably wouldn't have Obamacare. If Americans had heard from the beginning that health care reform meant a new tax, the legislation probably wouldn't have gone far. This is especially so given that the tax primarily will be on the backs of middle-class Americans who can least afford it. Who else, after all, is going to be hardest-pressed to find extra funds to purchase insurance?

The Obama administration knew this. The legislation's authors in Congress knew this, which is why you may not have heard it before the Supreme Court ruled. This is to say, Obama won the day almost by accident—and not at all because his Commerce Clause justifications were constitutionally sound.

During oral arguments, the taxation aspect of the mandate was made almost as an afterthought, according to sources close to the action. Yet it provided the basis for the final ruling. This is what Roberts apparently saw as the compelling (or perhaps convenient?) argument that led him to rule against expectations. Congress doesn't have the authority to expand the Commerce Clause to force people to buy something they don't want to buy, but Congress does have taxing authority.

For now, Americans can't be forced to buy broccoli but they will have to ante up more of their dough -- either to insurance companies, the real victors, or to the federal government. No wonder Roberts looked so sad when he entered the chamber on Thursday. He also knows that the palm fronds usually precede the crucifixion and it's only a matter of time before his worshipers become his tormentors yet again.

Kathleen Parker's email address is kathleenparker@washpost.com. (c) 2012, Washington Post Writers Group.




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