Yesterday's health care ruling was such a surprise (except to one person) that for a few glorious hours, most of those in political punditry had literally no idea what to say. Everybody had been so primed to explain what the rejection of the bill meant for Obama, or had been up all night making charts about severability and so forth, that nobody bothered to think of what it would mean if the Act were actually upheld.
But this is cable-news era politics, and narratives reform fast. By the end of the day, two seperate responses had emerged from the conservative sphere that attempted to smooth the cognitive dissonance over the fact that Obama's signature legislation, the illegitimacy of which has become taken for granted on the right, was now officially the law of the land.
The first concerns Roberts's ruling. Roberts was a Bush appointee and makes regular appearances at the Federalist Society. For him to uphold a huge government expansion into 1/6 of the economy was so shocking that some conservatives immediately disowned him. (Bonus: the next interview with George W. Bush is going to be amazing.)
But by the end of the day, a new narrative had formed: John Roberts had made the Affordable Care Act a Trojan Horse for Federalism. By rejecting the ACA on Commerce Clause and Necessary and Proper grounds, and explicitly stating the Congress had no ability to compel commerce in order to regulate it, Roberts actually scaled back significantly Congress' power to pass legislation.
Or so the theory goes. Tom Scocca ran with it first, saying that Obama had won the battle but Roberts the war:
This is a substantial rollback of Congress' regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts' nomination, saying he did not trust his political philosophy on tough questions such as "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Today, Roberts did what Obama predicted he would do.
By dusk, George Will and Charles Krauthammer, the Tweedle-Dee and Tweedle-Dum of Washington Post conservatives, were forcefully touting this line. Krauthammer was especially sage on Roberts's decision, showing how sharp a commentator he can be when not frothing at the mouth on Fox News:
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Here's Will, even more triumphantly:
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers. By rejecting the Commerce Clause rationale, Thursday's decision reaffirmed the Constitution's foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, "the enumeration presupposes something not enumerated." [Italics his]
There's still a giant debate to be had over how much Roberts actually reined in the Commerce Clause. If Roberts's reading is restricted to the compulsion of commerce, as the liberal justices read it, then its impact would be severely limited: one of the reasons the ACA became constitutionally exceptional was that it was considered a rare instance of Congress compelling all citizens purchase to make a purchase. Conservatives were adamant that this was unprecedented; if so, then Roberts's rejection of Congress' authority to do it should be extremely limited as well, no?
However, Roberts's decision could also be read as an attack on Wickard v. Filburn, the case on which Scalia reversed himself just last week, in time to make it not applicable to Obamacare. Wickard is what allows the federal government to concern itself with local commerce by arguing that when intrastate commerce affects interstate commerce, even indirectly, it becomes the federal government's business. Many wanted Obamacare to be argued as blatantly constitutional under Wickard. That it wasn't, and that Roberts's didn't make the argument, suggests that there is a coming rereading of Wickard that really could change the nature of the Commerce Clause.
The second narrative is a whole lot shorter. In fact, it's only three letters: <spooky>TAX</spooky>. Your PoliticOlogist kept the coverage tuned to Fox News yesterday (and was therefore fooled along with them about the ruling for a minute) and got to see the talking points develop in real time. Megyn Kelly—looking about as angry as a human being possibly can look while still anchoring a live news show—focused on the Medicaid portion that was struck down, because it was painfully obvious she had no idea what the conservative opinion on the bill was yet, and neither did anyone else.
Within the second hour of coverage, however, the word tax started popping up more and more. By the third hour Fox was gleefully running clips of Obama from 2009 swearing up and down that this was not a tax. By the fourth hour, Obamacare was "the largest tax increase on the middle class in history." And by the end of the day, the narrative was complete: Obama had bait-and-switched the nation with a bill about an "individual mandate" that was really a tax all along, thus imposing by decree the largest tax hike in history on an unsuspecting public.
These are the two narratives of Roberts's decision: that it was a Trojan Horse for the reining in of the Commerce Clause, and thus a Federalist long game, and that Obama intentionally deceived the country about the nature of his signature legislation. For the record, just because they're talking points doesn't make them wrong, especially not on the judicial point. But right or wrong, expect to hear these lines repeated, and naseum, until they become as taken for granted by the right as Obamacare's unconstitutionality once was.
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