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Lesson of ObamaCare: Get it Passed

That this morning’s ObamaCare decision is disastrous should go without saying. The government’s claim that the mandate is a tax should have been rejected as the Alice in Wonderland reasoning that it is–here’s Obama saying it’s not a tax and here he is saying he’s never raised any taxes–and the law should have been struck down.

Conservatives who are finding solace in potential political implications–that the decision will unite the Tea Party behind Mitt Romney, that Obama will get tagged for increasing taxes, etc.–are setting themselves up for disappointment. As of March, only half of Americans even knew that ObamaCare was still on the books. As of today, they’re going to be bombarded with the message that Obama won, that the Supreme Court  signed on to ObamaCare, and that anyway, the issue is closed and we need to be talking about jobs. It’s not clear that Romney should or will move off his all-economy-all-the-time messaging. This morning, he’s at least partly framing the decision in terms of jobs. With the exception of short-term fundraising, it’s uncertain how today’s decision will ultimately impact the election.

Even if Romney did start pointing out that the president flip-flopped on ObamaCare being a tax, and even if that message penetrated the electorate, conservatives would still have traded removing a dagger aimed at the heart of the country’s fundamental notions of citizenship and its financial solvency for the off-chance that “Democrats pulled off a bait-and-switch” will swing five percent of Virginia voters. Not a great deal.

The lesson of ObamaCare remains the same as it’s been since the Democrats used exotic parliamentary maneuvers to pass it: success for a political movement lies in passing what you can, however you can, whenever you can, and on whatever basis is at hand. The presumption granted to facts on the ground–argumentatively and politically–is worth whatever short-term hits parties and movements take to their credibility. Once a law is passed, its proponents get to paint any change as upsetting rather than restoring the status quo. That’s how House Democratic leader Nancy Pelosi could declare that ObamaCare had moved from a privilege to a right, with the New York Times insisting we have to let existing laws work. Meanwhile, liberals gained a strange new respect for judicial modesty, which was to be enforced by intimidation from the president and his water-carriers.

That presumption played out in the Court’s decision which, once you get past the literally surreal declaration that ObamaCare is a tax, isn’t terrible. Congress does have nearly unlimited taxation power, more or less by design. Judicial checks were erected, meanwhile, to limit expansive congressional mischief conducted under the umbrella of its enumerated powers.

Before this morning, that distinction was implicitly recognized, albeit badly mangled, by liberals such as Ezra Klein and Paul Krugman. They simply could not get past the argument that, because Congress can undeniably tax the country into a single-payer system, a less ambitious non-tax intervention should surely pass constitutional muster. That reasoning, which was delivered with typically inexplicable cocooned smugness and happens to be exactly backwards, simply misunderstands the kinds of checks built into the Constitution. The analogy here is to Congress’s power to raise an army. Citizens can be ordered to become soldiers but not ordered to become construction workers, even though building a wall is much less severe than being sent to war. The Framers placed fewer institutional checks on broad enumerated powers such as taxation and conscription because in a democracy over-taxation and needless war-making are electorally toxic. The check on Members of Congress in those contexts is that they’ll get voted out of office. The Framers erected institutional judicial checks on violations of liberty that were less publicly inflammatory, and which therefore required something beyond electoral oversight. Luckily, the Kleins and Krugmans of the world will no longer have to trouble themselves with those distinctions, now that they’ve been told ObamaCare is indeed a tax and not something structurally less than a tax.

Voters were supposed to prevent Congress from taxing them into a health care mandate. The Court was supposed to check Congress from abusing its Commerce Clause authority to create a health care mandate. Democrats dodged voter oversight on taxation in 2010 by insisting ObamaCare wasn’t a tax, and then they survived judicial rejection of their Commerce Clause reasoning in 2012 by insisting it is a tax. It’s a neat trick, and one they shouldn’t have been allowed to get away with. But again, presumption is powerful, and it lets you throw everything against the wall to see what sticks. Conservatives would do well to heed that lesson.


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