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JUNE 29, 2012 4:02PM

Why Conservatives Don't Have To Flip Over Roberts Ruling Yet

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 For MEB, forever and ever.

If you read the entire decision, the first part of it totally dismisses the Commerce Clause argument for the ACA for good reason.

The reason is that the use of the Commerce Clause to achieve such ends often obfuscates the real costs of governmental interventions, and therefore impedes the functioning of the political process as to the actual choices facing voters, unless you really think that the intellectual class can somehow always calculate the real impact of its regulatory decisions, and most especially always would report such costs honestly.

Of course, to be fair, the other most important actors in American politics, private corporations and the military-industrial-intelligence-foreign policy complex, also often fail to calculate optimally, since it's an imperfect world, but that's why you want to bound power in general, and channel it in mixed forms as to majoritiarian rule and minority rights, property rights especially, if at all possible.

People on the Left aren't thinking very clearly if they don't see any danger in an unbounded power of government, especially over economic activities.

The Left in a certain segment is too much like the Bourbons; remembering everything, and learning nothing. The Right of course does that too, especially one might argue lately in deference to use of force questions, if it's not a world that will ever actually function like a pure Libertarian will like, since there are always compteting considerations.

The best it gets is what the Framers of the Constitution had in mind as to balancing power mainly through the political process, backstopped by basic protections of property rights primarily, if also individual rights in criminal matters, and free speech, and weapons ownership.

But as to why the Right shouldn't completely freak out about Robert's ACA decision, totally unbounding the power of government is not what Roberts did in his decision, if there are some Conservatives like Alberto Gonzales who wish he had refused to take the case on the grounds that it was a tax.

In the future, some who strictly follow jurisprudential principles of Original Intent and Judicial Restraint will make that case or controversy argument, if what's done is done.

Once Roberts decided the Individual Mandate would be a penalty in terms of statutory interpretation of the Anti-Injunction Act, as to there existing or not exising a case or controversy, he then proceeded to demolish the Commerce Clause as providing an unbounded power of the Federal government to exercise control over citizens.

Why people on the Left now crowing over the ACA decision in some quarters don't see that there is a good reason in Anglo-American tradition to bound the power of the government to control property and economic activity in general is beyond me.

But as to the rest of the Roberts decision, it has the advantage of forcing the argument towards taxation, where it belongs.

Too often the Commerce Clause is used as an excuse to force things on people they have to pay for, allegedly for other's benefit, but without having to use a direct question to the people of the Several States: Would you like to pay for that and put your money where your mouth is?

One good thing a Conservative could take from the ACA decision is that by rejecting that use of the Commerce Clause, the Left in a general sense now has to ask more for the monies it wishes to take from one set of people and give to another more directly, which is what the political system will decide.

Conservatives also now need to offer what it is that they think is optimal in terms of a Federal role in healthcare, noting that unless you really think abolishing Medicare and Medicaid is within the realm of the politically feasible, unlikely, that Federal role won't be zero, nor Constitutionally does it have to be, because of what Roberts correctly pointed to as the General Welfare Clause in Article One, Section Eight.

Moreover, as to why the Right need not totally freak out about the ACA decision, yet, what was not really addressed in the decision was the nature of what constitutes a "Direct tax," which if ACA runs amok and starts incentivizing broccoli consumption so to speak with Pol Pot like intensity as to tax penalties (if you don't go to the gym every day and eat broccoli every day and go to the re-education meeting to ponder the works of Dear Leader Obama, you pay a fine of $10,000), could in the context of the Roberts decision easily be re-litigated, which is to say that if Roberts possibly let a camel's nose in the tent, it's so far only a nose, and moreover, the political process is ultimately where such questions as to do we wish to sleep with camels are best decided anyway, a Conservative Original Intent principle.




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Roberts did conservatives a huge favor.

1. Whatever Americans believe, they undoubtedly believe that no one will take a single benefit away, under any circumstances, before prying it out of their cold, dead hands. Who wants to explain that your kids under 26 that they gotta buy their own insurance (if they need it, they can't afford it) or that pre-existing conditions and lifetime limits are going to be in everyone's future?

2. It's the only possible plan that is designed around letting everyone keep every possible thing they have (at least at the beginning). Employer paid plans? check. VA benefits? check. Medicare? Check. &c. &c.

3. It's Romney care. For this election, he can now pretend that it is Obamacare to his base. He doesn't have to be for anything since he can just be against this.

4. As the Federal Government gets closer to literally spending 50% of all money spent on health care (Medicare, Medicade, VA, DOD insurance, Federal Employee Benefits, &c) -- we are at a point where anything is better than nothing. A lot better than nothing.
Good analysis Don, not much I disagree with here. Of course, the spinmeisters on the Right (Fox News) and the left (MSNBC) have been spinning at 90,000 RPM since yesterday to tell their viewers what they should think of it all, so any reasoned analysis has little chance of reaching the masses, and even if it did they'd yawn and change channels to Keeping Up With the Kardashians.
What I think the key is the focus shifts to the real issue, costs, in American medical care, because by calling it a tax, that focuses the mind more tangibly, especially Nick the issue of 50 per cent of expenditures, because in 1960, out of pocket expenditures were that number, and the change is no small part of the cost issue.