1. Before storms rocked the D.C. region, there was the Obamacare ruling. There is a growing consensus in Washington, across the political spectrum, that John Roberts switched his vote in the health care case. The joint dissent by Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Sam Alito reads like a majority opinion and refers repeatedly to Ruth Bader Ginsburg's partial dissent/partial concurrence as "the dissent." There have been reports that after Roberts switched sides, Kennedy led a campaign to try to win him back.
2. There are four reasons I don't buy the conservative/libertarian defenses of Roberts even if I do think the ruling contains silver linings:
- Kennedy voted with the conservatives, meaning that the reversal of the law rather than some concessions from the liberal justices was the best attainable outcome
- The Medicaid penalty is thin gruel compared to the individual mandate and could cut both ways for federalism if it even has any impact at all
- Roberts is writing for himself on the commerce clause and necessary and proper sections of his opinion; neither the liberal justices nor the conservative dissenters join, making the commerce clause limitations of little value as precedent
- Even if regarded as precedent, it is hard to imagine what future expansion of government Roberts' logic will enjoin that is worse than Obamacare.
3. We are already seeing that the Democrats are going back to the statute's language and calling the individual mandate a penalty rather than the tax the ruling they embrace claims that it is. They even have a bit of a point, since the mandate is clearly a punishment rather than something designed to raise revenue. But the political value of this is limited: if the Democrats were to resist a Republican repeal attempt through reconciliation, it is hard to see where they would have a legal leg to stand on.
4. For Barack Obama, the tax language is the biggest political downside from the ruling. The Supreme Court has basically declared him a middle-class tax hiker.
5. For Mitt Romney, the biggest political downside is that it puts the focus back on the individual mandate. Obama and his media supporters are already making hay of Romney's past for support for the mandate and its roots in Republican/conservative policy circles.
6. In non-health care news, last week was a good one for incumbents. Orrin Hatch easily survived his primary challenge. Charlie Rangel's contest was more competitive, but he still won by a comfortable margin. New York will, however, avoid the shame of having a congressman whose Jew-baiting was sufficient to win him the endorsement of David Duke despite being a former Black Panther.
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