Thursday, June 28, 2012


T o paraphrase Democratic former House Speaker Nancy Pelosi, the Supreme Court had to rule on Obamacare so we could find out what’s in it.

In an opinion that defied all predictions, the nation’s highest court judged Obamacare constitutional. Swing-vote Justice Anthony Kennedy did not join his liberal colleagues. Instead, conservative pin-up Chief Justice John G. Roberts Jr. flew with the court’s left wing. Among the pundits who paraded through TV studios before Thursday’s decision, none saw this coming.

Writing for the 5-4 majority, Chief Justice Roberts agreed with Obamacare’s free-market critics that Congress cannot compel people (via the individual mandate) to purchase a product (health insurance) in order to regulate these Americans. Insofar as the court restrained Congress’ ability to deploy the Commerce Clause to such ends, it likely limited future mischief by professional troublemakers on Capitol Hill.

However, Chief Justice Roberts and Democrat-appointed Associate Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonya Sotomayor decided to justify Obamacare’s individual mandate as a tax. This truly is head-scratching, as the mandate’s costs were marketed as a penalty, not as a new individual mandate tax.

By letting the Obama administration proceed stealthily along a route it avoided publicly, Chief Justice Roberts and his four new buddies resemble cops who have stopped a motorist for speeding. When the driver explains that he was going 85 mph to enjoy his new transmission, the police officers reply: “Well, that would be illegal. But since you are late for work and want to keep your job, please floor it and get out of here.”

By allowing the mandate to survive as a tax, Chief Justice Roberts and the court majority have handed President Obama a major victory - and two major headaches.

This clearly is a massive relief for Mr. Obama. Had Obamacare been rejected outright, he would have had to face voters with virtually zilch to show for his tenure. His $831 billion economic stimulus has stimulated nothing. Designed to keep unemployment below 8 percent, it instead presaged 40 consecutive months of joblessness at or above that level - the worst such performance since 1948. The stimulus’ “shovel-ready” projects overpromised and underdelivered because, as Mr. Obama admitted, “Shovel-ready was not as shovel-ready as we expected.”

Cash for Clunkers merely shifted demand for automobiles earlier on the calendar, yielding no long-term benefit. Some $5.1 trillion in fresh national debt (up 48 percent since he arrived) has delivered feeble gross domestic product growth of 1.9 percent. Mr. Obama’s sole triumph - the much-appreciated and highly worthy Navy SEAL shooting of al Qaeda chief Osama bin Laden - now drowns beneath a Niagara Falls of national security leaks. One blabbed detail, among many, outed a doctor who helped locate bin Laden. His thanks for helping American intelligence: a 33-year sentence in a Pakistani prison.

Rather than run for re-election beneath a banner stating, “I got nothin’,” Mr. Obama will brag endlessly about his signature accomplishment.

Still, Obama faces two potential migraines:

First, the Supreme Court unwittingly has placed Mr. Obama’s greatest hit on a collision course with one of his biggest promises: “If your family earns less than $250,000 a year, you will not see your taxes increased a single dime,” Mr. Obama told a joint session of Congress on Feb. 24, 2009. “I repeat: not one single dime.”

By sticking with Obamacare, Mr. Obama must admit that he has stuck Americans with a new tax on nearly everyone, not just the “millionaires and billionaires” whom he decries by day and with whom he dines by night at $40,000 per plate. America’s spender-in-chief now seeks another term as the taxer-in-chief.

Second, according to pollster Scott Rasmussen, 54 percent of Americans want Obamacare repealed. Those numbers will go up, not down, as citizens realize that this 2,801-page monstrosity is an unworkable, bloated, Washington power grab turbocharged by a near-universal tax hike.

None of that rhymes with “four more years.”

To paraphrase Forrest Gump: The Supreme Court is like a box of chocolates: You never know what you’re going to get.

Deroy Murdock is a columnist with the Scripps Howard News Service and a media fellow with Stanford University’s Hoover Institution.

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