Court ruled supreme on health care

By Robert Bennett

Published: Monday, July 2 2012 12:00 a.m. MDT

This June 20, 2012, file photo shows the U.S. Supreme Court in Washington.

Associated Press

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Last Thursday's Supreme Court decision on the Health care act is rightly being reported as a victory for President Obama. What is clear below the headlines, however, is that the Supreme Court's ruling also contains victories for conservatives, victories that may have a greater impact than Obama's in the long run.

George Will began his column on the subject by saying, "Conservatives won a substantial victory Thursday." Charles Krauthammer, speaking of Chief Justice Roberts, wrote, "He managed to uphold the central conservative argument against Obamacare," even as he was voting to uphold the law. Several liberal bloggers who read the opinions closely came to the same conclusion, as they contemplated what this ruling did to the concept of unlimited federal power.

To understand what they are talking about, realize that there was not one but three different decisions, and conservatives prevailed in two of them.

First, when conservatives argued that the commerce clause could not be stretched so far that it permitted the government to order citizens to do something they did not want to do (unrelated to national security), Nancy Pelosi responded incredulously, "Are you serious?" By a 5-4 vote, Roberts in the majority, the Court ruled that conservatives were not only serious but right. George Will says, "By persuading the court to reject a commerce clause rationale for a president's signature act, the conservative legal insurgency … has won a huge victory for the long haul."

Next, by a lopsided 7-2 vote, Roberts in the majority, the Court also ruled, with respect to the act's Medicaid provisions, that there are limits to the federal government's power to dictate to the states. The Washington Post editorializes, " … in terms of legal significance, this restriction of federal authority may have greater ramifications that the court's limiting of the Commerce Clause. One can imagine challenges to federal conditions across a wide spectrum of programs … "

Nonetheless, in the third decision, by a 5-4 vote, Roberts in the majority, the court allowed the act to stand "largely unscathed," quoting Justice Ginsburg. Conservatives ask Roberts, "Why?"

Because his first loyalty is to the Supreme Court and its proper place in the constitutional framework. Referring to the court's "general reticence to invalidate the acts of the nation's elected leaders," he said, "It is not our job to protect the people from the consequences of their political choices." That is judicial restraint, something for which conservatives have been calling for years. That is also what Roberts promised to do, during his confirmation hearings.

Both conservatives who are mourning and liberals who are rejoicing should understand that the court's decision does not mean that everything is smooth sailing for the Health care act from now on. It still contains a large number of problems unrelated to its constitutionality. The multiple deals that were made to get enough votes to get it through the Senate resulted in a measure that is badly flawed, in particular with respect to its accounting, which doesn't add up. It will have to be opened up for amendment and revision in the next Congress regardless of which party is in charge.

Thus, by refraining from killing the bill just because he personally didn't like it, the chief justice has empowered the rest of us. He has put the future of health care legislation right where the Constitution says it should be — in the hands of those elected by the people — and in November, when the president and Congress that will again address the issue will be chosen, each one of our votes will count as much as his.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.

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