Unfortunately Roberts Gave the GOP Two Huge Political Gifts in Health Care Opinion

Earl Ofari Hutchinson

President Obama was right. The Supreme Court’s decision was “a victory” for the people, a monumental victory, and one that will and should be savored. But the victory unfortunately comes with a political price. The price is the political gifts to the GOP buried in Chief Justice John Roberts deciding opinion. One gift was Robert’s flat declaration that the law as based on the Constitution’s Commerce Clause was unconstitutional. This was manna to heaven to ultra conservatives who have long screamed that the Commerce Clause has been the hammer that the federal government has used to usurp state's rights, prerogatives, and power. Said Roberts, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."  This was straight out of a page from the rabid states rights and anti-federal power Federalist Society’s playbook. Roberts was once listed as a member of the Federalist Society.

GOP presidential contender Mitt Romney wasted no time in picking up on that theme by railing that the health care decision was an example of big government intrusion over state’s rights and a stifling violation of individual liberties that he claims any government regulation and mandates for health care is. When the dust settles and the GOP figures out what Roberts really did in that part of his ruling, he almost certainly will latch onto point and pound the Obama administration even more mercilessly about alleged big government’s overreach and oppression.

The more subtle political gift that Robert’s gave the GOP was his basis for upholding the law. He branded the individual mandate a "tax" that Congress has the right to levy. This will allow the GOP to do three things. It will paint Obama as a liar by repeatedly looping his oft stated pledge that the Affordable Care Act would not raise taxes on business or individuals. It will play hard to the ultra conservatives set attack piece that Democrats are inherently tax and spend and that Robert’s ruling confirmed that. And since nothing raises the hackles of conservatives, and much of the public, more than another mandatory tax hike, this will be exploited for all its worth. Finally, the tax hook will fire up the conservative base as never before. They will rail for the next four months that Americans will pay through the nose for health care courtesy of a big intrusive federal government and that they have absolutely no say so over it. They’ll cap that ploy by welding it to the line that the tax will be another job killer as well as another assault on individual freedoms and liberties

The conservative’s game plan with Robert’s witting or unwitting help will be to turn health care repeal into a national crusade to not just take back the White House but pack Congress with a new wave of Tea Party spouting ideologues.

The health care law should have been upheld and millions will benefit from it. And Roberts may have been truly motivated by the logic and constitutional correctness of the law on this. But given Roberts finely honed rock solid ultra conservatism, and legal caginess, the political price of victory on the health care law was a front and backdoor gift to the GOP’s campaign hit squads.