It Is Up to Us Now

Many conservative bloggers have spent the last day either attacking John Roberts or trying to explain his decision. I will not be doing either today. What happened at the Supreme Court is over and will not be changed, at least for some time. I believe Roberts was wrong to uphold the mandate as a tax, yet at the same time, he did exactly what his philosophy of judicial minimalism requires: looking at every possible angle for a way to uphold the law before choosing to strike it down. While we can debate whether or not the mandate should have survived, even as a tax, there is no doubt that Roberts looked at every angle in an attempt to find the mandate constitutional.

However, I believe Roberts has advanced the conservative cause in three ways. First, he established that there is a limit to the power of government under the commerce clause. The Court established that the government does not have the power under the commerce clause to force us to purchase a product (in this case, health insurance). He did, however, greatly expand the power of Congress to tax by telling us that while the government cannot force us to buy something, it can tell us that we must pay a tax penalty if we refuse to buy it. The one advantage of this interpretation (as opposed to the Commerce Clause interpretation) is that now any attempt to pass another mandate will have to be sold as a tax increase before it can be passed. The health insurance mandate was changed to its current form after it could not pass Congress as a tax, even with the deep blue House and a filibuster-proof Senate. Knowing that they will have to face their constituents, Congress will be much less likely to pass these type of mandates as a tax than as a commerce provision. I will take the commerce clause limitation, even with the expansion of tax powers that came with it.

Second, Roberts left us with these words in his opinion: "It is not our job to protect the people from the consequences of their political choices." We may not like ObamaCare, and we may not like the Court's decision that upholds it, but in November, we will have the power to change Congress, the President, and this law. I believe this decision will mark the start of a second tea party wave that will affect the elections in November. The Court's finding that the mandate is constitutional may affect its view in the minds of a few people, but it will not change the fact that this is a highly unpopular law. The Republican victory in 2010 was the result of a nation fed-up with laws like ObamaCare, Dodd-Frank, and the stimulus. In 2012, we may see the same result because of the Court's ruling.

This does not mean that the Court's decision will result in a sure victory for Romney and a sure takeover of Congress. As we learned from the Wisconsin recall, we have enough voters on our side, but we also face an opponent who will do anything necessary in order to win. It is up to us to be active from now until November: get people registered to vote, explain the issues, present a strong conservative case, and by all means, do everything you can to get the vote out on November 6.

Finally, the Chief Justice has given us a strong argument to support the overhaul of the tax code. By ruling the mandate as a tax, the Chief Justice basically ruled that the individual mandate instituted a new tax (starting at the greater of $285 per family or 1% of income in 2014 and increasing to the greater of $2085 per family or 2.5% of income by 2016), and it then provided a tax credit of an equal amount for those who maintained health insurance. One might question why those with health insurance would receive preferential tax treatment, but this type of preferential treatment occurs throughout the tax code's various deductions and credits. Own a home? Get a special tax deduction. Pay college expenses? Get a special tax credit. Buy an energy-efficient furnace? Get a special tax credit. Purchase employer-sponsored health insurance instead of your own individual plan? Get a special tax deduction. Donate to charity? Get a special tax deduction. Ultimately, the tax code has become a way for government to encourage individuals to behave in a certain manner, and the ObamaCare individual mandate tax is just one more extension of the government's behavior-controlling tax code power.

It is up to us to get out the vote in November so we can win the the House and take back the Senate and Presidency, but why let it stop there? After repeal, we can use this unpopular mandate to point out the problems in our current tax code and push for a complete overhaul. A proper tax code overhaul would not only provide a giant boost to our economy, but it would also help alleviate concerns about future abuses of power in light of the Court's decision yesterday. If we institute a flat tax with very limited deductions (mainly for IRAs and other items which would be taxed later), it would be even more difficult for a politician to justify creating separate groups in the tax code which are to be treated differently. The mandate-as-a-tax ruling could be the impetus needed to begin a tax code overhaul.

If conservatives sit down and surrender after the Court's ruling yesterday, it could certainly mark the start the death of America as we know it. However, if conservatives get active, push for conservative candidates, and then keep pushing for the implementation of conservative principles, the Court's decision yesterday could also mark the start of some of America's greatest days. The difference between these two outcomes is all up to us.