Seven More Thoughts on the Decision
In no particular order:
1. In mulling the political impact of the decision I wrote several times about what we might call the Riled Up Theory--that a decision in favor of side A could in fact end up helping side B more politically in terms of the election because side B's base voters would be much more fired up to vote. Anger is the best motivator in politics. So I would not doubt that yesterday's decision will galvanize conservative voters. Democrats have to think on that.
2. However, there is a Newtonian opposite to the base, and it's called swing voters--wing voters vs. swing voters, if you will. I think I wanna write my weekend column on this, so I'll not say too much here except that I think the Democrats can win this argument.
3. Re the commerce clause. As you probably know, conservative legal theorists are claiming a great victory here, and I can readily see why. They won a key principle. But I agree with commentators like Jack Balkin, who wrote that in practice, the potential applications of this seem narrow. So the government can't compel individuals to purchase a particular product or engage in a certain commercial behavior. But what other commercial behaviors is the government going to compel people to engage in? I know conservatives fear this list is endless, but in fact, I can't see many, or barely any. Mayor Bloomberg wants people to drink less sugar. But he did not impose a tax or penalty on those who drink Mountain Dew, and he would not, because the mere idea is preposterous. And no, no government is going to make people buy broccoli. A cornerstone of the liberal argument here was that health care is a sui generis good, and if that's right, the narrowing of the commerce clause shouldn't mean a lot practically. (More after the jump.)
4. The Democrats do have a problem on the tax question, no doubt about it. The passed the bill saying penalty. Then in their own brief before the Court, they said tax. So it's a tax. But as I wrote yesterday, it's a tax that will fall, experts believe, on maybe 2 percent of the population, maybe a little more. That obviously won't prevent Republicans from saying that Obama is raising everyone's taxes, as they're already saying. But that's a lie, and Democrats have to make clear that it's a lie. And there's this: Mitt Romney can't use this line, because if this is a tax, then what he did in Massachusetts is a tax, too.
5. On balance I agree with Chait, and not Frum and Lizza, that if Romney is elected, he and the Republicans can potentially repeal the law. Both David and Ryan make excellent points and are worth reading. But I'd think that if Republicans keep the House, gain the Senate, and win the White House, they can proceed. They don't need to come up with the "replace" part. They'll just take us back to the status quo ante. Where I disagree with Chait is on his assertion that the election is now a referendum on Obamacare. Nah. The economy will still be issue number one, I think.
6. Speaking of the Senate, and being from the great Mountain State, I kept an eye out for Joe Manchin's statement. In the scenario laid out in point 5 above, Manchin would likely top a list of Democrats Who Might Back Repeal. But his statement from yesterday gives him loads of wiggle room to go either way.
7. Finally, Roberts. Someday we'll learn whether all this speculation that he switched at the last minute is accurate. I think the position of the minority was a bridge too far for him. I bet if the four had settle for tossing the mandate, Roberts might have signed on. So now we have a decision that (face it, conservatives) hastens the day when this country will have single-payer health care. And my gut is telling me that it's because of the extremism and obstinance of the minority, who would settle for nothing less than wiping out the whole thing.