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Richard Brodsky

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The Dust Settles: Roberts Protects Obama

Posted: 07/06/2012 12:29 pm

It will be hard to overestimate the impact of last week's Supreme Court decision on Obamacare. It was legally dispositive. On every other front it was a curtain-raiser, most of which will appear center-stage in the Presidential election, and almost all of it good for Obama.

Obamacare is constitutional, so sayeth the four liberals and Chief Justice Roberts. But for many it is constitutional in the sense that the Dred Scott decision was constitutional. It is the pronounced law and in a society that obeys the law, it will roll out and into the lives of every American.

But for many, it remains an illegitimate law. Texas Rep. Louie Gohmert called the ruling "illegitimate" and said Justice Elena Kagan should be impeached because she served as U.S. Solicitor General when the law was passed. Senator Rand Paul said "Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional."

Roberts' clever decision isolated the crazies, reminded Americans about how we settle disputes, and protected the role of the Court itself. The "legitimacy" battle will still be fought on both the left and right but most voters will accept the law as within the bounds of the American system.

The Commerce Clause ain't what it used to be, so sayeth the four conservatives and Roberts. The Congress' power to regulate economic and social activity has rested on the constitutional language about interstate commerce. By limiting that power to regulation of affirmative behavior, the majority started down a road with uncertain results.

Roberts' opinion said:

Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it.

As Senator Barack Obama said in 2005 in opposing the Roberts nomination, Roberts did not believe "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." Obama was right and Roberts and the conservative five will continue to try to delegitimize the Federal Government's role in our economy.

It's a tax. Well, it's really not, but never mind. The Right's apoplectic reaction to this assertion, before and after the decision, goes again to the legitimacy of actions by the federal government.

If it's a tax "Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS" and "there will be virtually no sphere of private decision-making beyond the reach of federal power." And what would the Left say if a Republican Congress required every American to purchase a gun, and empowered the IRS to collect a penalty for failure to do so as a "tax?" And don't think it won't happen if the election turns the Senate.

And by the way, two hundred years ago the Congress actually passed such a law.

But the decisions real impact on "legitimacy" comes in pure political terms. At the heart of the electoral tactics used by the Right have been spoken and unspoken arguments that Obama is an illegitimate President, not just a mistaken or incompetent one, who is building a "secular socialist machine that represents as great a threat to America as Nazi Germany." Obama the illegitimate, Kenyan, socialist.

Well, right or wrong on the law, good policy or bad, the Supreme Court told the American people that Obama was within the Family of Americans, a part of the mainstream, a law-abiding leader, a recognizable political figure. For voters who had been affected by the unceasing barrage of attacks on his legitimacy, there is reassurance from, of all people, John Roberts. That is an incalculable benefit to Team Obama.

When the Right sputters about taking the Obamacare debate to the electorate, they concede that they are in a contest of ideas. They will now have to do more than call names, they will, eventually, have to tell us what they would replace Obamacare with. And that's a debate Obama can win.

The real impact of the decision is to deal a real body blow to a conscious and continuing attempt to read Obama out of the American mainstream. There really is a vast, right-wing conspiracy, at least on this issue. So, buckle up for a bumpy ride to be sure, but reflect that John Roberts found a path to political stability, even as he opened the door to a whole bunch of policy changes, most of them bad.

 

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