The Tea Party’s Roe

Column: Justice Roberts Throws a Lifeline to Romney’s Campaign

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June 29, 2012

Even before the Supreme Court upheld Obamacare on Thursday, one could detect among liberals a certain desperate willingness to pronounce the health care debate "over." The message from the president and his surrogates—from the flacks at the DNC to the hacks at MSNBC—was that it was time, to use a favorite phrase of the left, to move on.

"We’re not going to re-litigate health care reform," President Obama told an audience in Philadelphia earlier this month. The American people "understand we don’t need to refight this battle over health care," he said at a fundraiser in Atlanta on Tuesday. "What the country cannot afford to do is refight the political battles of two years ago," he said after the Court issued its decision.

But Obama is wrong. The health care battle is not settled. On the contrary: Justice Roberts’s opinion has airlifted the combatants to a different battlefield altogether. By affirming the individual mandate not on the grounds of the Commerce Clause but the congressional power to tax, Roberts has, intentionally or not, exposed the president as a liar, and as willing to raise taxes on the middle class.

Roberts has therefore handed Republican challenger Mitt Romney a powerful issue in the midst of a bitter and nasty and close presidential campaign. And Roberts’ elevation of the 2012 stakes arrives at a critical moment. Romney was getting tripped up in the brambles of immigration and outsourcing; now he can move to smoother terrain. Only liberals caught up in the backslapping and football-spiking euphoria of the moment will miss what is going on here: John Roberts just threw a lifeline to Mitt Romney’s campaign.

Disagree? Then ask why Obama is so eager to convince Americans that the health care issue is settled, and remember that those who want to change the subject under debate tend to be on the losing side.

That is certainly the case with Obamacare, which the public has opposed since the late summer of 2009 and still very much wants to repeal. If Obama and the Democrats truly were proud of the Affordable Care Act, if they really did think it was a winning issue, one would expect them to do nothing but "re-litigate" and "refight" it, especially in light of their victory at the Court. But after the obscene tweets and celebratory parties are over, the candidates who will talk the most about health care will be the ones most disappointed in Justice Roberts’s decision, and most eager to overrule Obamacare legislatively rather than judicially.

They will have ample reasons to campaign against Obamacare and in favor of common sense, patient-centered health care reforms. The catalogue of Obamacare’s faults is thick, and makes for depressing reading. There is the bill’s unsustainable cost, manifold tax increases, and funding of abortions, contraception, and abortifacients through insurance exchanges. There is its prospect of denied care and treatment through unelected bodies such as the Independent Payment Advisory Board. There are the shady deals the White House cut with pharmaceutical manufacturers, and the Cornhusker Kickback and other deal-sweeteners, to get the bill through a Democratic Congress on a party-line vote.

There are the laughable and false promises Obama made in his doomed attempt to win public support for his signature legislation. He said no one will lose his health plan, but the law has no such guarantee. He said Obamacare would reduce costs, but costs have risen. He said the law will lower premiums, but premiums are likely to rise. He said medical malpractice reform was a "priority," but there is no tort reform in his bill. He said the measure will reduce the deficit, but the slightest change in its structure or increase in the number of beneficiaries will balloon the national debt.

Then there are the taxes. Obama has said throughout his candidacy and his presidency that he will not raise taxes on anyone whose household income is less than $250,000 a year. He even attacked John McCain’s 2008 health care reform as a middle-class tax increase. Americans for Tax Reform, however, identifies no less than 20 additional or higher taxes the bill imposes on incomes of different levels. Justice Roberts’s ruling that "the shared responsibility payment may for constitutional purposes be considered a tax" uncloaks the individual mandate as one of the largest middle-class tax increases in history. This is a Death-Star-worthy laser aimed at Obama’s planet-sized ego. His credibility is dust. "The bill was sold to the American people as a deception," minority leader Mitch McConnell said on the floor of the Senate Thursday. Sarah Palin put it more succinctly: "Obama lies; freedom dies."

Americans may not be especially eager for further tax cuts, but they are also opposed to increasing taxes on themselves. It is Romney’s job to explain that such a tax increase is precisely what will happen if Obama is reelected. The hikes will come in two waves. The first arrives in December, when the elected branches confront the defense sequester and scheduled increase of all tax rates. If Obama is reelected and the partisan alignment of Washington does not change, it is possible, and perhaps even likely, that the president will allow current tax rates to expire not only for the "millionaires and billionaires" mentioned in his speeches, but for everyone. He would allow this huge increase reluctantly, while blaming the Republicans all the way, but also with the knowledge that the only way to fund his massive spending is to tax the middle class.

The second wave will hit in 2014 when the individual mandate—let’s call it the "health tax"—is scheduled to take effect. This tax is not limited to the wealthy, either, but applicable to any middle-class American who chooses not to purchase government-approved health insurance. Not even a Keynesian would say the net result of this one-two tax punch would benefit the economy.

Obamacare since its inception has spurred conservatism. The reaction against the bill was furious, and activated millions of Americans who had not been involved before in electoral politics. The town-hall meetings that erupted into protests in 2009, the Taxpayer March on Washington on September 12 of that year, Glenn Beck’s Restoring Honor rally in August 2010—they were all preludes to the incredible Republican "shellacking" of Democrats in the midterm elections. The importance of the health care overhaul in the Republican victory was evident when the first non-appropriations bill passed by this House repealed Obamacare. The intervening debates over the debt ceiling, and the ridiculous intramural squabble of the GOP primary, deflected attention from Nancy Pelosi’s "crown jewel."

That is no longer the case. First Obamacare’s contraception mandate mobilized churches and churchgoing Catholics and pro-lifers and other friends of religious liberty against the incumbent. Then came Thursday. Roberts’s ruling in NFIB et al v. Sebelius may be seen in retrospect as the Tea Party’s Roe v. Wade, an act of judicial folly that functions as a rallying point for all those who believe the powers of the federal government are not unlimited and that the job of government is to secure our natural rights, not provide for our every material need. Like Roe, Sebelius is only the beginning of a fight that will operate for years on the executive, judicial, and legislative branches and at all levels of government.

It is up to Romney, Republicans, and the Tea Party to remind Obama, the Democrats, and the progressives that just as there are no final victories in politics, there are no final defeats. Ignore the president. Romney needs to refight and re-litigate Obamacare, and he needs to do it now.