A Mandate and a Tax

June 28, 2012

Today’s 5-4 Supreme Court decision upholding the Affordable Care Act, commonly called Obamacare,  is certainly a victory for the President as he holds on to his premier piece of domestic legislation and can claim that millions of Americans will benefit from the law. Republicans on the other hand will have to fight a rear guard action complaining about the Court’s decision and banking on negative public opinion toward the law to propel them to victory in November.

The most interesting aspect of the decision in which Chief Justice Roberts joined the four liberals on the Court to keep the Affordable Care Act on the books is that the law was upheld not on the power of Congress to regulate interstate commerce but on the federal government’s right to tax those Americans who refuse to buy insurance from private companies.

All this Tea Party, conservative, and Republican complaining about personal liberty, socialism and big government in the end was not relevant to the constitutional issue that turned the conservative Chief Justice of the Supreme Court into a traveling companion of the four liberal justices.

Of course President Obama will claim a huge political victory as he should and this decision may indeed seal the fate of Mitt Romney and his supporters who lost most of the immigration decision by the Court a few days ago and now the defeat on the Affordable Care Act. Romney will have great difficulty slamming the Chief Justice of the Supreme Court and he may be resigned to the fact that his only talking points are to nit pick at the policy with the promise that he will change it when he gains the White House. Most Americans will likely take the decision in stride and move on.

For the Republicans there is  a faint glimmer of hope in the fact that the word taxing power was used by Justice Roberts. Americans are tax increase averse and the fact that the mandate has a tax penalty may just be the opportunity the right will have to continue their fight against Obamacare. But because most Americans already have private health insurance, those who may pay a tax for refusal to join an insurance group is not large. No huge electoral bonus there.

More importantly, since the mandate does not kick in until 2014 there will not be sufficient evidence to see whether it is indeed a budget buster and job destroyer and a huge government boondoggle, so the President will be able to carry this Supreme Court victory into the election without having to dodge all those dire Republican charges.

On balance then, the Supreme Court came down on the side of  federal power, the President wins big, the Republicans have lost two major planks of their anti-Obama rhetoric, and the parts of Obamacare already in place are hugely popular with Americans. This was not a good day for Mitt Romney.