On MSNBC last evening Chris Matthews and Howard Fineman crowed that President Obama will be happy to talk about Obamacare for the next few months rather than the lousy economy. That’s quite an admission about his economic stewardship, but it’s bad political punditry as well.
The president hasn’t talked about Obamacare before this court case because it’s a loser politically. That’s not going to change now that the law is actually worse from a political and policy standpoint. The uninsured who will be helped by the measure, to be blunt, either don’t vote or were already voting for him; the conservatives and independents who dislike the bill will be charged up. The Obama camp has known this from the get-go, which is why in that 54-minute Batan-death-march-of-a-speech he couldn’t find time to mention his “signature” legislation.
Moreover, Mitt Romney isn’t going to stop talking about the economy. In fact, his entire argument is that the president’s policies, especially Obamacare, are sinking the economy. Romney argues that businesses are paralyzed, unwilling to hire due to the overwhelming burden of additional costs associated with everything from health care to expiration of the Bush tax cuts to Environmental Protection Agency regulations. Now he can point to the massive Obamacare tax and introduce a stream of business people willing to talk about the Obama administration’s anti-business, high-tax agenda.
Now on the Obamatax question, Romney is on solid ground calling the president duplicitous in specifically running on a promise not to raise taxes on those earning less than $200,000, selling his bill that way and then telling the court a different story. About 75 percent of those who will hit by the tax earn less than $200,000, according to Congressional Budget Office.
Moreover, he shouldn’t be shy about raising the tax issue. In his Massachusetts health-care plan, Romney didn’t introduce a new tax on millions and millions of people. In fact, very few people (about 8 percent) were uninsured in his state. The fine for being uninsured, therefore, really was in the nature of a sporadic penalty, not an across-the-board tax on the middle class.
In short, Romney need not be afraid of making the tax argument. We’re in a semi-recession already and we shouldn’t be raising taxes via Obamacare or through expiration of the Bush tax cuts. Let Obama defend huge tax hikes while simultaneously claiming the prolonged economic slump isn’t his fault.
A final word about Chief John Roberts’s decision to convert the mandate into a tax. It was, as one law professor rightly called it “intellectually shabby.” But it does not extend the tax power, which was exceptionally broad before this case. The issue, as the dissenters put it, “is not whether Congress had the power to frame the minimum-coverage provision but whether it did so.”
We are not worse off from a jurisprudential standpoint, and Congress gained no new power; we merely witnessed an intellectually disingenuous analysis of the statute. We are protected from abuse of the taxing power by public opinion (which generally opposes tax hikes).
Some take Roberts’s internally incoherent tax ruling as a brilliant scheme: End the court’s Commerce Clause expansion, stick Obama with a “tax,” and cut off the Medicaid bully maneuvering (thereby protecting the states and screwing up the funding mechanism for the law) all while getting praise from liberals and giving the green light to Republicans to wipe out the “tax” by reconciliation. That may well be, but the reputation of the court is not preserved by blatant deal-making, opinion swapping and evasion. Legitimacy comes from the bottom up, that is, from well-reasoned opinions grounded in the Constitution.
Conservatives may have lost the battle and won the war (on the Commerce Clause, on the election, in setting up repeal of the “tax” by reconciliation). Roberts may have won the battle (kudos from elites, avoiding a White House showdown) but lost the war (the primacy of the rule of law over politics, his legacy). Time will tell. Meanwhile, Romney should now harness that public opinion to his advantage, forcing Obama and Democrats to own the tax and justify a jaw-dropping bait and switch.