Health law win bittersweet

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It was a "total victory," said House Democratic Leader Nancy Pelosi of the Supreme Court decision (mostly) upholding Obamacare.

For liberals, the taste of victory was sweeter, and for conservatives, the taste of defeat more bitter because it was unexpected. Most thought the Supreme Court would throw out the individual mandate, which requires everyone to buy health insurance.

That it was conservative Chief Justice John Roberts who cast the decisive vote heightened liberal delight, deepened conservative dismay. But while Ms. Pelosi celebrated, more thoughtful liberals fretted:

"There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts...delivered victory to the right in the one that mattered," Tom Scotta wrote in Slate.

The individual mandate was permissible under the provision in Art. 1, Sec. 8 of the Constitution which gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," the president had argued. But Obamacare stretches the Commerce Clause too far, the Supreme Court ruled.

Because Obamacare was found to be constitutional under the power to tax, Ms. Pelosi and most others missed the import of that ruling. It's a very big deal.

"By explicitly and unequivocally limiting the scope of the Commerce Clause as well as the feds' ability to coerce the states, he has done major damage to the century-long leftist project to do away with constitutionally limited government," wrote political scientist Jay Cost.

"What Roberts has done is fundamentally shift the constitutional debate away from the liberal assumption since the Woodrow Wilson era that an Imperial Presidency and supine Congress can pretty much do as they please so long as it's covered by at least one of those fig leaves known as the General Welfare, Necessary and Proper or Commerce clauses of the Constitution," said Mark Tapscott, executive editor of the Washington Examiner.

"The new assumption is, thanks to Roberts, that at least two of those clauses in fact cannot simply be dragooned into the service of whatever a passing majority in Congress wants to do," Mr. Tapscott said.

By giving liberals a nominal victory while siding with conservatives on every major legal question, the chief justice insulated himself and the Supreme Court from criticism "if, in the future, Roberts leads the court in cases that more radically constrain the federal government's power to regulate interstate commerce," said liberal journalist Ezra Klein, who noted, ruefully, "he did it while rendering a decision that Democrats are applauding."

"It is not our job to protect the people from the consequences of their political choices," the chief justice said. That's the most succinct repudiation of judicial activism I've ever heard a Supreme Court justice make.

His decision thrusts Obamacare back into the political process, which is very bad news for Democrats. The president is spared the humiliation of having his signature "achievement" tossed out -- at the price of ownership of the largest and most regressive tax increase in history.

Obamacare was the issue that killed Congressional Democrats in the 2010 midterms. Now it's front and center again.

Democrats would have been better off had Obamacare been thrown out. Republicans would have lost an issue. Democrats and their allies in the news media could have used attacks on the Court to distract attention from the economy, and badgered Republicans about what they'd do to replace Obamacare.

People are more active politically when they're frightened or angry. Now all the energy is on the conservative side. The Tea Party is reviving, donations are pouring in to the Romney campaign and to the Republican National Committee.

The economy might have picked up, because business leaders say Obamacare is the chief reason they're not hiring. Little could have helped Democrats more. The plunge in the stock market following the decision suggests the economy is now likely to go further south.

Justice Roberts is right. It's not the job of the courts to correct the mistakes we make in the voting booth. It's our job. By restoring Obamacare to the front of the political agenda, simplifying, clarifying and reframing Obamacare as a tax and spending issue, the chief justice has given us our best chance to do that job. That's why Mr. Klein, and adversary, thinks he is a "political genius."


This story originally appeared in The Pittsburgh Press. To subscribe: Jack Kelly is a columnist for The Press and The Blade of Toledo, Ohio. , 412 263-1476.


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