“In our view, the entire Act before us is invalid in its entirety.” So wrote Justice Anthony Kennedy, a key swing vote on the Supreme Court, of the Patient Protection and Affordable Care Act. Yet Kennedy’s view did not prevail because Chief Justice John Roberts sided with the Court’s liberal bloc and rescued the individual mandate by classifying it — despite Barack Obama’s repeated assertions to the contrary — as a tax. The essence of the law was thus upheld on the basis of an argument the solicitor general refused to make.
Given how close we were to having the act struck down entirely, conservatives are rightly disappointed by the decision. But there are a few silver linings. The Court ruled that states can’t be penalized for declining to participate in the Medicaid expansion. Roberts did not endorse the Obama administration’s expansive interpretation of the commerce clause, preventing this ruling from creating a general police power for the federal government.
Most importantly, the ruling that the individual tax has broad political implications. First, it immediately makes Obama a middle-class tax hiker, as certified by the Supreme Court. Even Mitt Romney ought to be able to run against the health care tax. Second, this paves the way for the mandate to be repealed through the reconciliation process. No filibusters will be allowed. All it will take is 50 Republican senators, a Republican House, and a Republican president.
Romney has said he is for Obamacare repeal. He has given us some reasons to doubt that commitment, but that has been his position throughout this campaign. If he is serious about it, the ball is squarely in his court. It has been placed there by the Court.
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