*that claim has not been verified
In Orlando, Florida -- the news had broken several hours before but I had been at a swimming pool several hours before, and so had only just wandered near a television, and heard that the law was upheld.
So I didn't immediately have much information about the decision itself or how it was arrived at; in the two weeks since the decision broke, I have read a lot of coverage and heard a lot of discussions about it but haven't had a chance to sit and think about what the decision means, and, more specifically, whether it was a good or bad thing that the law was upheld, especially given that the reasoning for upholding the law is, let's face it, suspect.
While I don't mind at all that the President said the law isn't a tax and then the Supreme Court upheld it on the basis of it being a tax -- whether the President thinks something is or is not a tax is not in any way the measure of whether a law is constitutional and/or a good idea, those two things being entirely separate concepts in reality, if not in most people's minds, -- I do mind that the Court found it to be a tax, because from the snippets of coverage that I read, the Court was wrong about that: the law almost certainly isn't a tax, and that begs the question of just how the Court reached that conclusion, and whether reaching the so-called right decision via the wrong route is a good or bad thing.
That is, if the ends never justify the means, as they cannot, does it matter that Obamacare was found to be a violation of the Commerce Clause power, an unjustified extension of it (as I suspected it would be so found, rightly), only to then uphold the law on a potentially-specious basis?
What will be the ramifications of a ruling made ostensibly for one purpose but potentially for another? What will be the outcome of not confronting the question before the Court head-on, so to speak, and instead allowing the Court to slightly twist the law and give itself a little more power?
This has happened once before, at least, in Supreme Court history -- in Marbury v. Madison, remember, where the Court faced a seemingly untenable decision: Order the president to do something he was not going to do, and admit the Court has no power to enforce its orders, or let the President essentially dictate to the Court how the outcome of a case must present itself.
John Marshall, then, famously sidestepped the question by deciding that the Court could strike down laws -- granting the U.S. Supreme Court a power we now take for granted, the power to determine if a law is Constitutional, and a power that is not in the Constitution -- and that has shifted the balance of power in our government, a sea change of 200 years that altered the constituencies of what the founders intended more surely and more subtly than eliminating indirect election of Senators or essentially voiding the Electoral College.
What has happened now thrice in just the past 12 years is a mostly conservative, increasingly activist Supreme Court has determined that it will intervene in state procedures if there is a federal impact (Bush v. Gore), but that it can limit the effect of that ruling by essentially declaring nobody will ever follow it, making that case the first unpublished Supreme Court case, in a way; the Court has then reversed a century of jurisprudence on electoral regulations in Citizens United, and, with Obamacare, has not only declared the outer limits of, and an end to, the Lochner era of free regulation of commerce, but has now declared that taxes are what the Court says they are.
Is that a good thing?
Sure, we have health care -- health care that conservatives, outraged by John Roberts' strange decision won't obey -- but what has the price of that health care been?
I don't know, yet -- but I want to read the opinions and share my thoughts over the next few posts on this subject, so stay tuned.
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