The dawn of a new age of government?

By Elvin Lim

Senator Edward Kennedy called healthcare reform the “the great unfinished business of our time.” Now it is finished. Every branch of the US government has had its say. The Supreme Court decision also marks the end of the Rehnquist era. No longer can we reliably predict that it would always send powers back to the states. Indeed, it said “No” to 26 states which had challenged the Affordable Care Act.

This is also, incontrovertibly, a victory for Obama. Today, John Boehner called the Act a “harmful” law. Mitch McConnell called it “terrible.” Romney called it “bad.” But none of them can call it “unconstitutional” anymore, taking the wind out of the Tea Party‘s sails.

Sure, this is now a rallying and fund-raising issue for Romney, but it’s always been an issue. The conservative base now knows that the only way to repeal the Affordable Care Act is to take out Obama. The difference between a conservative and an independent voter, however, is that only the former looks back. Swing voters at the presidential lever will appreciate a conservative Chief Justice’s endorsement of the Affordable Care Act and won’t care anymore after this. This is now a done deal. It re-establishes Obama as a leader because he joins Lincoln and FDR as a winner in tumultous politics.

If Obama follows up and wins the election this year, we may be in for a resurgent Age of Government after three decades of retrenchment. FDR caused the nine (justices) to switch in time in 1937. Obama caused only one, but then again he pushed through a law that FDR knew he couldn’t do. And the one justice to switch was a Chief Justice appointed by his Republican predecessor no less.

To be sure, the Court did reject the administration’s argument that the Interstate Commerce clause legitimated the individual mandate. Chief Justice Roberts, however, argued that the Supreme Court’s job is to mine the Constitution for arguments — even when the administration failed to find or emphasize them — to sustain acts passed by Congress. In ruling that the mandate is constitutional under the taxing and spending powers of the Congress, he exercised, in his mind, the duty of judicial restraint and deference to the elected branches. In this, he acted like the Justice George W. Bush thought he had nominated to the bench.

However, the constitutional reasoning Roberts proffered — that the individual mandate is a tax (and the Attorney General explicitly said it was not) — is way beyond what Bush or any conservative would have liked. People aren’t quite coming to grips with this fact yet. The congressional power to tax is a massive power and by failing or refusing to make a clear and distinct separation between what is a tax and what is penalty (Roberts gave three very weak reasons), this decision delivered a huge victory for “big government” liberals. Almost anything can henceforth be classified a tax and therefore permissible under the taxing and spending clause of the Constitution.

The Anti-Federalists of 1787/88 were right; where the purse lies, so does sovereignty. Publius, or at least Hamilton, knew it too, but he kept mum about it because his goal had always been a “consolidation” of federal authority. Today, Justice Roberts unknowingly but effectively extinguished the (already specious) distinction between a tax and a penalty. When Republicans now turn their argument to calling “Obamacare” “Obamatax,” they are fighting on much weaker ground than before because the taxing and spending powers of Congress are massive. Yet this power was among the principal reasons for why the Constitution was written in the first place. What John Roberts did, in effect, was to force conservatives back their original ground and show their true colors. They are, at heart, Anti-Federalists who are no more appreciative of a powerful federal government in 1787 than in 2012.

Liberals shouldn’t get too smug yet though. The individual mandate is not the panacea of our still very flawed health-care system. Thirty million or so people are now going to be in the system in 2014 and they will move from emergency rooms to already crowded primary care physician offices. This is the start of healthcare reform, not the end. But it is also the start of an era where government is no longer seen as the problem. It may yet prove to be the solution again.

Elvin Lim is Associate Professor of Government at Wesleyan University and author of The Anti-Intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com and his column on politics appears here each week.

Subscribe to the OUPblog via email or RSS.
Subscribe to only politics and law articles on the OUPblog via email or RSS.
View more about this book on the