There is Still a Pulse for the Opposition

Yesterday, the Supreme Court, in a convoluted 5 to 4 decision, upheld the president’s landmark domestic initiative – the Affordable Care Act.  In doing so, the chief justice, John Roberts, stated that the core part of the act, the individual mandate, was constitutional – not as a mandate but as a tax.  In doing so, the president won the battle over the measure but might have lost the war.  In the Supreme Court’s decision, it might have fired up the forces against the health legislation in the lead up to the general election on 6 November 2012.   

Since the passage of the Affordable Care Act, forces have marshaled against the law.  The first and most prominent of these forces were the Democrats whose party unilaterally pushed the bill through.  Very few Democrats have mentioned the historic health law since its passage and many who were its most ardent supporters went down in defeat in the 2010 mid-term elections.  As we near the general election, more Democrats have distanced from the president and his policies as a growing number have denounced the health law.  The governor of Missouri, Jay Nixon, a Democrat, has openly challenged the president’s health law in the face of a state vote rejecting the individual mandate and a populace, who 70% of, disapproves the law.  

Prior to yesterday morning when the president acknowledged the victory he earned from the Supreme Court, it was difficult to find an instance where he championed the health care law to a national audience.  He will often speak on the measure at controlled events but seldom nationally.  It is here that the Republicans and Democrats who oppose the health law could find an opening.  First, the president and his supporters spent much of the lead up to the bill’s passage rejecting the notion that the mandate was a tax.  When the Court ruled the individual mandate constitutional as a tax, it invalidated the administration’s arguments over the last three years.  Even the chief justice’s rational, that it was not the Court’s job to rescue the population from their political decisions, hint at the problematic nature of the law and its mandate – its funding.  As a tax, it is the largest tax increase devised.  It is hard not to make political hay out of this.   

There are large problems with the Court's declaration of the mandate as a tax.  In dissent, Justice Anthony Kennedy suggested the Court did not interpret but rewrote the law with the switch in language.  Furthermore, beyond the difficulties it places upon the administration, it represents a problem as a tax.  Is a tax a tax if it did not originate within the House of Representatives, the only political body the Constitution says can create tax legislation?  At best, it represents a multifarious constitutional labyrinth to navigate before the law can be fully vetted.  This does not include the many other issues that are bound to emerge as the law, which many Democratic leaders confessed they had not read in full, comes into effect.

The biggest silver lining could be the injection of energy and purpose it gives conservatives.  The justices themselves encouraged the reaction by saying, 7 to 2, that the federal government could not punish or threaten states to participate in the program.  As states and activists digest this bit of information, the decision will drive some Democrats, if not to Mr. Romney, then away from President Obama.  The health care law, which Rep. Nancy Pelosi (D-CA) said would have to go into effect to understand it completely, is so unpopular that had the Supreme Court struck it down, it would have lessen the urgency to vote.  Now, conservatives that have been a bit lukewarm towards Mr. Romney have a renewed motivation to vote this November.

As I’ve said before, Americans often define their freedom and liberties by the amount of choices they have.  The Affordable Care Act takes away many of those choices and puts them in the hands of the government.  Governments in general have difficulties in effectively and efficiently running industries.  Former presidential candidate Barry Goldwater, the senator from Arizona, once said that a government big enough to give you everything you want is big enough to take it all away.  When deciding on 6 November, it would behoove Americans to remember that.