Why do conservatives lose so many arguments they should win?
Because their bedrock principles can so easily be manipulated by opponents who have none – as Thursday's 5-4 Supreme Court decision upholding most of President Obama's health care reform illustrated.
To the shock of just about everybody, the swing vote did not come from the usual source – moderate Anthony Kennedy – but from Chief Justice John Roberts, appointed by Republican George W. Bush. It didn't take long for talk radio to brand Roberts a traitor to the movement, a latter-day Earl Warren who embraced liberal causes to curry favor with the intelligentsia.
But, in fact, Roberts' rationale for upholding the cynically named “Affordable Care Act” epitomized the kind of “original intent” philosophy conservatives claim to want – until that philosophy is used against them by attaching a constitutional fašade to legislation that would have made the Founders' heads explode.
Joining the court's “liberal wing” of Stephen Breyer, Ruth Bader Ginsberg and Obama appointees Elana Kagan and Sonia Sotomayer, Roberts in fact rejected the original constitutional justification for Obamacare: that it was allowable under the clause giving Congress the authority to regulate interstate commerce.
Instead, Roberts accepted the Obama administration's fall-back position that the bill's requirement that Americans buy health insurance constitutes a tax.
“Because the Constitution permits such a tax,” Roberts reasoned, “it is not our role to forbid it or to pass judgment on its wisdom or fairness.”
It was a statement that perfectly reflected conservative judicial thought – perfectly misapplied in this case.
Who says? No less than President Obama himself.
Having promised during his initial campaign not to raise taxes on anyone but the filthy rich, the president was hardly in a position to acknowledge that the bill's so-called “individual mandate” was in fact a tax when he spoke to ABC-TV's George Stephanopoulos back in 2009. Asked whether the mandate represented a violation of his campaign promise, Obama said this:
“For us to say that you've got to take responsibility to get health insurance is absolutely not a tax increase . . . You can't just make up that language and decide that it's a tax increase.”
But that's exactly what happened. By the time administration lawyers were arguing the case before the Supreme Court, however, they were insisting that the mandate is in fact a tax – precisely because Congress has the explicit constitutional authority to tax but not to compel the purchase of any particular product.
Until now, that is.
During those oral arguments, Kennedy suggested that the court's ratification of the mandate would fundamentally change the relationship between government and the governed, and he was right. If the bureaucrats can make you buy health insurance against your will, they can compel you to buy anything – including those solar panels and electric cars the president subsidizes but nobody wants.
Compelling people to pay for the health care they are sure to demand if they get sick may in fact be a good idea, but that does not make it constitutional, least of all on the basis of an argument as specious as this one.
Think of the other taxes you pay and you will notice a common denominator: You buy a house, you pay property taxes. Buy a car, you pay sales and excise tax. Earn a paycheck, you pay income tax. In each case, the tax is a response to a choice freely made.
When it comes to Obama's health care tax, on the other hand, you have no choice at all – except to not be born in the first place.
But don't worry. Obamacare will cover that that, too – whether your employer likes it or not.
Frankly, I had anticipated the court would at least invalidate the mandate if not the entire bill – something I thought would be good for the country but not necessarily for presidential candidate Mitt Romney and other Republicans targeted by irate Democrats. Thanks to Roberts, however, and with polls indicating Obamacare remains unpopular with most Americans, it is Republicans who have the unifying cause heading into the fall political season.
If Congress can impose a tax, after all, it can also rescind a tax.
As written, the Constitution was intended to limit the power of the federal government. But now, as Randy Barnett of the Georgetown Law School has noted, “Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS.”
People for whom the ends justify the means will have no problem with that. People who value constitutional principles will, which – considering it was one of them who created this mess – only makes Thursday's outcome even more perverse.