By Jared Allebest
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not tocompel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.
Republicans would have preferred the court overturn the health care bill, an act that would have underscored Obama's biggest liability -- the perception among voters, including those who like and trust him, that he has been ineffective.
But you can count on them to use Roberts' bill-saving justification to label Obama a tax-and-spend liberal.
"I'm sure they'll nail us on taxes and I'm sure it will work," said a senior White House official speaking on condition of anonymity. "But, given the alternative, that's a bitter pill I'm ready to swallow."
Obama is boxed in. What is he to do? He can't criticize the Court for judicial activism, as it upheld the law (putting aside the way the Court limited the Medicaid provisions, which are not particularly salient to voters). The decision undercuts a potential theme of his campaign -- that a conservative Court is out of control. And yet Obama can't trumpet the decision either, since it states that Democrats overreached in trying to justify the law under the Commerce Clause. Worse yet, it calls the mandate something that Democrats didn't want it to be: a tax.Conversely, the decision may be the optimal result for Mitt Romney. If the Court had struck down the mandate, it would have taken off the table an issue that Republican base voters care tremendously about. But in upholding the law, the Court didn't just leave that issue on the table; it gave Romney tremendous ammunition he can use to criticize Obama as a tax raiser.There was much contrarian wisdom floating around prior to the decision about how a defeat might be helpful to Obama, as he could run against the Court. Jeffrey Toobin criticized this as "nonsense": "Winners win, and losers lose." We'll never know if Obama could have potentially won by losing the health care case. But the coming months will tell whether he might have lost by winning.