Wiliam Bennett on the Supreme Court and ACA ruling

CNN is running a fascinating opinion series by William Bennett on the Affordable Care Act and the Supreme Court ruling.

Some highlights from today's piece-

The Supreme Court's verdict on Obamacare is in. As a tax, the individual mandate stands; as a Commerce Clause regulation, it fails.

What remains to be seen is whether Chief Justice John Roberts has crafted a masterly constitutional balancing act -- limiting federal authority and respecting the separations of powers -- or if he has engaged in a disappointing and inappropriate usurpation of the legislative function.

There are arguments on both sides. Some say that Roberts, not wanting to uphold the liberal reasoning behind Obamacare and an unprecedented expansion of federal power, concocted an opinion that would be limiting in scope, while still respecting the law and seeming nonpartisan. Others say that Roberts has unlawfully manipulated the mandate into a tax, thereby giving legs to a law that has none...

Chief Roberts writes in the majority opinion, "The mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS."

The dissenters, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, adamantly disagree: "[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it..."

The dissent is right. Roberts recast the mandate as a tax, a rationale that was not in the law or the government's case. He rewrote the administration's position, baptized it, and then blessed it. Roberts' defenders argue that he did so to avoid a constitutional crisis, but he may have created another by judicially re-legislating policy, a policy paid for and enforced by what could be essentially the largest tax increase in American history.

Roberts could have characterized the mandate as a tax and sent it back to the Congress, whose role is to legislate taxation, to redo.

Furthermore, the Roberts opinion invalidated Obamacare's penalty on states that refuse the massive expansion of Medicaid subscribers. States can opt out of the expansion of Medicaid and not be subject to a loss of funding. This is no doubt a victory for federalism and the 26 states that filed lawsuits against the government.

 

The verdict, while a serious judicial blow to conservatives, may favor them politically. Mitt Romney and Republican leaders can now campaign relentlessly against a massive, sweeping tax increase that will fall on the shoulders of an already weak economy.

The Supreme Court did not hand conservatives a lifeline. Elections have consequences and this fall's will be monumental.