A Further Perspective

Obamatax Apologists

Obamacare and the 5-4 illegitimacy of liberal pundits.

By and 6.29.12

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It seems only yesterday that liberal pundits and politicians were proclaiming that a bitterly divided 5-4 decision on the constitutionality of Obamacare would deny the Supreme Court "legitimacy."

Maybe that's because it was as late as yesterday that liberals were making this argument. That is until a little after 10 AM, when a bitterly divided 5-4 Court barely voted to uphold Obamacare -- or as it now should be known given the majority's seriously flawed reasoning, Obamatax. Suddenly, a slim majority didn't matter at all, as the Court was once again a wise tribunal.

"If they decide this by 5-4," Yale Law Professor Akhil Reed Amar told the Washington Post's liberal blogger Ezra Klein last week, "then yes, it's disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn't."

According to the plain language of Amar's quote, any 5-4 outcome should have rendered his life "a fraud" and mean that law didn't "matter." Yet, mysteriously no such press release has been released by his office.

Or take (please take!) the Daily Beast's Michael Tomasky, who is infamous for decrying what he called Americans' "freedom fetish" and praising New York City Michael Bloomberg's soda size ban. In a June 21 post entitled "America's Robed Radicals," he wrote of the Roberts Court, "The express point has been to radically remake society, without a hoot of concern about whether it was being done by five or seven or nine."

But suddenly when Roberts vindicated a law he favored, it was Tomasky who had not a "hoot of concern" about whether it was "five or seven or nine." Now, it was all about who won the ballgame, no matter what the score was. "The bottom line is the bottom line," he proclaimed a few hours after the decision. "Now [Obamacare] has teeth, and standing, and the presumption that America should give it a chance to work."

Tomasky praised Roberts, as did many other progressive commentators throughout the day, for making "a legal rather than a political decision." He said Obamacare supporters should answer just about any argument with the rejoinder that "John Roberts is on our side on this one."

There are a couple problems with that argument, though, not the least of which is that Roberts succinctly made clear he was ruling on the constitutional, not policy, merits of the law. His opinion declared: "We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them."

But the main hole in Tomasky's argument is that Anthony Kennedy, who -- again just yesterday before 10 AM -- was being hailed as the great "moderate" and "reasonable" hope and who has delighted liberals with various rulings from immigration to gay rights, blasted Obamacare's provisions as constitutional abominations.

"The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting states all Medicaid funding," Kennedy joined with Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in writing. And Kennedy also joined with them in declaring that because "these parts of the act are central to its design and operation, and all the act's other provisions would not have been enacted without them … it must follow that the entire statute is inoperative." Just what exactly is it – even if one disagrees with the argument – that makes this line of reasoning "political" rather than "legal"?!

Roberts' break from the logic and reason of these conservative and moderate justices was disappointing, but at risk of sounding like a cockeyed optimist, there are some silver linings. He seemed to insist on some concession from his liberal colleagues as the price for his going along. The concessions were mostly rhetorical, but in the long run, rhetoric can matter.

Every justice except Ruth Bader Ginsburg joined in Roberts' ruling that federal mandates punishing economic inactivity, such as not buying health insurance, cannot be justified by either the reach of the Constitution's "commerce clause" or "necessary and proper clause." By 8-1, the justices set a precedent affirming the arguments of libertarian Georgetown University law professor Randy Barnett, who is considered the architect of the constitutional case against Obamacare, that could be used against similar mandates in the future.

However flawed Roberts' tax justification is – and it is extremely flawed – it does put some limit on the government's power in enacting such mandates. It means that any punishment beyond taxation, such as large fines or criminal penalties, would likely be struck down.

The other concession Roberts seemed to be reaching for is best called "truth in advertising." It means that the decision of the Obama administration to finally admit before the Court that the law was just one big tax hike will have political costs. Sarah Palin displayed her rhetorical smarts with her tweet that "Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies."

Similarly, the savvy freshman Rep. Bill Huizenga (R-Mich.) said in an email yesterday to supporters: "According to today's United States Supreme Court ruling, ObamaCare is just a massive tax increase. The Democrats misled the American people and so did President Obama about this specific issue."

Palin and Huizenga are keeping their eyes on the right target, and advocates of limited, constitutional government should follow their examples. While we can and should vehemently disagree with Roberts' 5-4 opinion, conservatives should not stoop to the level of Amar, Tomasky, and other Obamacare shills who attack the Supreme Court's "legitimacy" if it doesn't rule their way. The Court was designed as part of our constitutional system by the Founding Fathers, and thus can never be illegitimate.

Rather, it's the legitimacy of those partisan hacks dressing themselves up as serious Supreme Court observers that now more than ever is in doubt.

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About the Author
John Berlau is Senior Fellow for Finance and Access to Capital at the Competitive Enterprise Institute and blogs at OpenMarket.org.
About the Author

Mark Beatty is a research associate at the Competitive Enterprise Institute.