Rhetoric doesn’t match the facts, and Roberts may not be a traitor to conservatism after all

A follow-up on Thursday’s Supreme Court Obamacare ruling:

The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them.  Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.

A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional.  Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues.  Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!

Will:

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

Krauthammer:

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote.  Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity.  But still, he was on the right track…

Health insurance law ruling will refocus fall campaign–away from the most important issues!

Let the predictable caterwauling begin: today the Supreme Court upheld the constitutionality of President Obama’s signature domestic policy achievement, the Patient Protection and Affordable Care Act, with Chief Justice John Roberts leading the majority on the 5-4 decision.

The heart of the disagreement over the law is its requirement that each of us Americans purchase health insurance, and the court has now ruled that the requirement does not violate the Constitution.

During oral arguments in March, conservative justices indicated they were skeptical about the individual mandate, the provision in the 2,700-page health-care law that requires nearly all Americans to obtain health insurance by 2014 or pay a financial penalty.

Arguing the case for the Obama administration, Solicitor General Donald B. Verrilli Jr. defended the law as a constitutional exercise of congressional power under the charter’s commerce clause to regulate interstate commerce. He said lawmakers were regulating health insurance to deal with the problem of millions of people who lack coverage and therefore shift costs to the insured when they cannot pay for their medical care.

Paul D. Clement, representing Florida and 25 other states objecting to the health-care law, argued that Congress exceeded its power in passing the law, which he said compels people to buy a product.

The court rejected Obama administration’s commerce-clause argument, but ruled 5-4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”

Neither the plaintiffs in the case nor the Obama administration had argued before the court that the individual mandate was a tax.

(In fact, that is the point made—the only point made—in the story I saw when I clicked on the lead headline on FoxNews.comthis afternoon.)

The decision means that implementation of the new law should proceed, with the aim to get health insurance coverage for tens of millions of currently uninsured Americans; these are the people who currently access the most expensive health care around through emergency rooms and charity care, medical care that those of us who pay taxes are already footing the bill for anyway.

So, that’s settled.  Or not.  Arguably, the real heart of the disagreement is that this is Obama’s plan, and people who had supported similar health care insurance law revisions in the past (like the conservative Heritage Foundation and many Republicans; like the Commonwealth of Massachusetts, W. Mitt Romney, Gov.) opposed this one because it was Obama’s plan.  People like Mitch McConnell, and others who have proudly and publicly asserted that they will do whatever is required to make Barack Obama a one-term president (for whatever reason).

The dissent in the case will only fuel their fire: it argues that the Obamacare mandate that individuals purchase a product—health insurance—and its threatened denial of some Medicaid funding to states for non-compliance both unconstitutionally exceed government authority, and that since those provisions are crucial to making the system work, the entire statute should be tossed out…hmm, not much room for compromise here, I guess.

It’s unfortunate that the divide on the court was (except for Roberts) by perceived political ideology—for many people that’s going to reinforce the idea that the justices make their decisions based on politics rather than the law, and that will reinforce the left/right division in politics.  But it could have been worse: as David Franklin from DePaul University’s College of Law argues in Slate, Roberts found a way to uphold ACA in order to save the integrity of the Supreme Court.

A 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics. Add the fact that the legal challenges to the individual mandate were at best novel and at worst frivolous, and suddenly a one-vote takedown of the ACA looks like it might undermine the court’s very legitimacy.

And, of course, health care is now likely to become the distraction center for a presidential campaign that I’d hoped would hold its focus on employment and the federal budget.

(We don’t need to spend time discussing how, in their rush to be first with the news, CNN and Fox both got the story completely wrong, do we?  Fish in a barrel…)

Here’s a smattering of the early reports on the court ruling, for your edification and delight: