|"Etch a sketch" political maneuvering ain't gonna cut it...|
It's now been several days since Chief Justice John Roberts single-handedly upheld Obamacare's constitutionality by declaring it a tax--and the GOP is squandering its moment.
For much of the last week "conservative" pundits and elected officials have been bending into philosophical pretzels in order to declare the judicial activist John Roberts a conservative hero. Defying all logic and abandoning the Constitution, they have gone to great lengths to paint the hapless media pet as a brilliant Sun Tzu type thinker that has just won the November election.
As if that isn't bad enough, the presumptive GOP nominee, the individual mandate/government-run healthcare enthusiast Mitt Romney, and various factions of the RNC seem to be on completely different pages in how to respond. Indeed, Mr. Romney, as per his usual MO, appears to be on completely different pages as himself depending on the audience and day.
This does not bode well for the GOP or American Constitutional government in the upcoming election.
First, a couple of observations about the incoherent John Roberts myth-crafting:
1. Many have posited that Roberts switched his vote for any number of reasons (protecting the integrity of the court, succumbing to media influence, political brilliance, arm-twisting or outright blackmail by the White House, etc.) NONE OF THEM make this decision any more palatable, constitutional or coherent. One could argue that this decision fires up the tea party and independent conservative and Constitutional Americans concerned with the slow strangulation of liberty by the statists. Tea party folks have a new vigor and passion to elect independent common sense soaked Constitutional conservatives this November. This fact does not, however, validate Roberts' actions. We had 4 justices, including the unpredictable Justice Kennedy, willing to strike down the entire law and kill it dead. All John Roberts had to do was vote with them. He didn't have to write the majority opinion. He could have hidden behind the superior Constitutional logic of a Justice Scalia or Thomas, leaving them to take the arrows of the left. Instead, a self-avowed "strict constructionist" opted to create law out of thin air.
2. As Constitutional expert Mark Levin opined, this decision is "absolutely lawless." He takes great care to break the decision apart and explain the sheer lunacy of it. The decision declares Obamacare unconstitutional under the Commerce Clause and then declares it a constitutional exercise of Congress' right to taxation. This is despite President Obama (both before and after the decision) declaring endlessly that it is not a tax and despite there being no briefing on the part of the administration to even argue that it was. Roberts' incoherent ramblings allowed the mandate to stand as a tax. He defines it in one portion as a tax, and in a move unheard of in tax litigation, refuses to or is unable to classify the tax under one of the existing legal classifications for federal taxation. Later in the decision, he declares that the mandate previously declared as a tax in this same decision is not a tax when it comes to the Anti-Injunction Act that would allow taxpayers to bring legal challenges against it because in this corner of the legal world, it has apparently morphed back into a penalty or fine. In other words, Obamacare's mandate is and isn't a tax. This is sheer lawlessness. It is breathtaking both in the infantile lunacy parading as legal thought and in its blatant disregard for the U.S. Constitution and the rule of law.
3. While Obamacare was upheld by 5-4, the four liberal jurists (Sotomayor, Kagan, Ginsberg & Breyer) DISSENT from the tax argument claiming that they voted to affirm the mandate because they believe it IS CONSTITUTIONAL under the Commerce Clause. What this means is that in a rather unprecedented move, this "majority" opinion as written by Chief Justice John Roberts was agreed to by ONE of the nine justices. The four conservatives (Thomas, Scalia, Alito and Kennedy) dissented from it in their own opinion and the liberals dissented from it in yet another one, voting with Roberts only to get their desired result.
4. Even IF Roberts had some delusional secret plan to impact the election by acting like a complete Constitutional illiterate to advance the cause, he has violated his oath and deserves to be removed. Playing games with the U.S. Constitution, the US Supreme Court, the rule of law, and the separation of powers between the three branches of government is treacherous, foolhardy and a dangerous erosion to the very pillars of our society. The judicial system requires sober-minded serious legal minds not duplicitous Machiavellian politicians.
Now, as the argument that so many are making for Roberts' brilliance is grounded in the foundation of making this a political battle for November, the GOP is breathtakingly squandering even that side benefit. Consider:
1. In the immediate aftermath of the decision, the RNC released an ad trying to make lemonade from this lemon by attacking the Obamacare Tax. This was a smart political move that could build momentum for GOP hopes in November. The RNC ad declaring Obamacare as a tax can be found here.
2. Similarly, within hours of the decision, Mitt Romney took to the stage in Washington DC to declare:
"Obamacare raises taxes on the American people by approximately $500 billion. Obamacare cuts Medicare, cuts Medicare, by approximately $500 billion. And even with those cuts, and tax increases, Obamacare adds trillions to our deficits and to our national debt and pushes those obligations on to coming generations."3. Yet, many of the statements of GOP leaders, while calling for a full repeal of the law, failed to touch on the newly-minted tax status of the mandate. Most preferred to argue that Obamacare is "still bad policy" and must be repealed. True enough. But not quite on the same page as the previously mentioned ad and statement by Governor Romney.
4. Just days after Governor Romney declared Obamacare a tax increase in Washington, his Senior Advisor Eric Ferhnstrom, best known for declaring Romney's ideological positions to be akin to an "Etch a Sketch" that would be "reset" for the fall election, declared on MSNBC that Governor Romney actually agrees with President Obama that the mandate is not a tax. He went on to clarify that Romney did enact the same mandate "fine/penalty/tax" in Massachusetts and that "it worked" there. According to Mr. Ferhnstrom, Romney's position then is not that Obamacare's mandate is a tax but that the federal program is a bad law and must be repealed. It was, however, awesome when enacted at the state level by Romney in Massachusetts. This hair-splitting position presumably supports the Tenth Amendment to the Constitution by rightfully asserting that the federal government has no authority to institute mandates. This is good. It does not, however, declare that government-run healthcare and the mandates/penalties/fines/taxes contained therein are bad policy per se. In other words, Mr. Romney is not against mandates or government-run healthcare in the least. He's just against instituting it at a federal level.
While an improvement on President Obama's radical leftist agenda, it is not a solid foundation for a winning campaign and demonstrates a very weak stomach for fighting this fight after the election.
5. It is for these reasons that the GOP and Romney are squandering the political moment handed to them by Justice Roberts' treachery.
Presumptive GOP nominee Mitt Romney and the GOP itself need to get onto the same page and provide a bold contrast to the president's radical Constitution-shredding power grab. At present, there is no clear indication that this will happen. As with the Arizona ruling, Governor Romney's approach has been to speak in platitudes and hold seemingly contradictory positions simultaneously. As a candidate with a long and breathtakingly consistent record of inconsistency and political double-speak on virtually every political issue imaginable, this latest example of "both sides now" policy-making is another nail in Mitt Romney's political coffin. It is another proverbial straw upon a weakening and unstable camel's back that will collapse like a dying star at any moment.
It is true that depending on each state's constitutional make-up, states have a legal right to institute mandates. It's still bad policy. It is good to defend the Tenth Amendment. It is, however, telling when you more vigorously defend it to prop up government-run individual mandate-toting Romneycare than you do in order to stand with Arizona against President Obama's "War On Arizona."
The GOP needs to decide whether to run on the "Obamacare is a tax" argument or not. It cannot do both. It must vigorously oppose government usurpation of the healthcare industry at ALL LEVELS. It needs to abandon propagandist efforts to prop up the failed Romneycare in Massachusetts. Above all, it needs to call the White House out on its lawlessness on both immigration and Obamacare.
The GOP is a house divided right now. Independent Constitutional conservatives are hanging on by a thread. The GOP and its titular head, Mitt Romney, need to sound a clarion call for Constitutional conservatism and offer bold SPECIFIC contrasts with Obama's utopian statism. If they fail to do so, President Obama will carry the day. If Governor Romney is unable to make this stand, he must step aside now and allow the GOP to find someone who will. This battle is too dangerous to lose via political weakness.
It is also clear that independent Constitutional conservatives need to focus tremendous energy on the down ticket races. Without a clearly conservative (not merely Republican) House and Senate, Mr. Romney has a great potential to go "all wobbly" on the idea of government-run healthcare and mandates. There is nothing in his record to suggest otherwise. He will repeal Obamacare ONLY IF we give him a conservative Congress and the overwhelming political mandate to prod him into that direction.
The Supreme Court won't save us. The Republican party won't save us. Mitt Romney certainly won't save us. It is up to WE THE PEOPLE to demand sudden and relentless reform and an immediate return to Constitutional government.
UPDATE: Apparently some folks agree with me. Breitbart.com is running an article detailing growing call of conservatives for Mitt to toughen up or step aside. Is a "Dump Mitt" movement beginning to gain steam?