28 June 2012
The Roberts Mandate
Like a Hollywood thriller, the Obamacare case had a twist ending. While swing-vote Justice Kennedy voted against the individual mandate, Chief Justice Roberts, Bush's man, provided the deciding vote for the mandate on the ground that Congress has the power to "tax" people for failing to purchase health insurance. He did not agree with the President that the Constitution's commerce clause enabled Congress to compel individuals to make the purchase, but says Congress can punish them for not doing so. Of such hairsplitting is the common law made. While many will try, no one can read Roberts's mind. Some will suddenly discover a principled inclination to compromise in this decision, while some may see a cynical ploy to give the Republicans a new "anti-tax" issue to campaign against, and some, no doubt, see the Chief Justice as a traitor. Roberts pointedly avoids comment on the policy merits of the law, as is appropriate. I was prepared to see the mandate go down and have already said that the Democrats had it coming for perpetuating the commodification of health care rather than going all-out for "single-payer." That tempers my feelings today. I wish not to rush to judgment praising Roberts simply because he ruled against Republican designs. His gesture does not bring peace and justice to the multitudes. I won't begrudge anyone a gloat at Republican expense, but if the GOP reactionaries lost -- and it's a moral defeat at most -- I'm not sure who really won. As Mitt Romney noted today, there's a difference between unconstitutional law and bad law. I don't exactly agree with his view of Obamacare, but I don't exactly agree with Obama's either. Albany saw a demonstration today in favor of single-payer; it made little difference to the demonstrators how the Court decided. One legal fight is over; a larger political struggle continues.