Sunday, July 1, 2012

Is Chief Justice John Roberts crazy a fox?

When Chief Justice John Roberts sided with the more liberal side of the Supreme Court bench to uphold the Affordable Health Care Act (Obamacare) under the taxing authority of the Federal government, a lot of Conservatives, Libertarians and Tea Party types thought he had lost his mind, if only temporarily. I must admit, that was my gut reaction. However, after hearing some of the punditry opine on the matter, I'm beginning to think the John Roberts opinion may some day be seen as the Trojan Horse that put the breaks on runaway Federal spending.

The Obama administration and Democrats in Congress did not want this law regarded as a taxing legislation. In fact, they rejected a version that referred to it as a tax. What the Roberts ruling does, is establish that a piece of legislation that requires individuals to make a payment to the Federal government is a tax, no matter what you call it or don't call it. This is important because a tax bill only takes 51 out of 100 votes in the Senate to undo. Other types of legislation can require a super-majority (60 votes) to accomplish a repeal. Whether the Obamacare bill survives or not, this will make it tougher to enact spending programs in the future, at least ones based on "fees", "surcharges", "penalties" and the like.

Perhaps more important, or at least equally important is the ruling on the expansion of Medicaid. Many states have opposed this portion of the law because it requires them to expand their Medicaid rolls through new eligibility rules. The Federal government, under the law as it stood before the ruling, would force states to comply by threatening to take away all of their Medicaid funding if they refused. The ruling says that's a no go. The Federal government can withhold funding for that particular program, but cannot take away existing funding. This is big, because other government programs have been forced on states using the same tactic. If you didn't raise your drinking age to 21 for example, you would have lost highway funds.

What this part of the ruling could enable is true state laboratories for government spending programs. States get to choose on their own, without the threat of force, whether or not to participate on an a' la carte basis. Good programs would be adopted by other states in the future. Bad ideas would gradually go away. More immediately, programs already in force are vulnerable. States may be able to now opt out of existing programs within programs without fear of reprisal.

Now, I think it's still possible that Roberts simply dropped the ball on this one. But whether unintentionally or with brilliant forethought, it's also possible that Chief Justice Roberts has opened up two new fronts in the war on over-reaching government. Fronts that big government fans were not prepared for.

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