Cookie consent

We use cookies to improve your experience on this website. By continuing to browse our site you agree to our use of cookies. Tell me more | Cookie preferences

Health care ruling can help Romney

 Mitt Romney speaks in response to the U.S. Supreme Court ruling on the Affordable Healthcare Act

Story highlights

  • William Bennett: Chief justice recast the mandate as a tax, which wasn't in the law
  • He says he should have called the mandate a tax and sent it back to Congress
  • He says Obama had insisted it was not a tax; the flip-flop will be GOP ammunition in election
  • Bennett: Romney has been handed a powerful issue to campaign on

The Supreme Court's verdict on Obamacare is in. As a tax, the individual mandate stands; as a Commerce Clause regulation, it fails.

What remains to be seen is whether Chief Justice John Roberts has crafted a masterly constitutional balancing act -- limiting federal authority and respecting the separations of powers -- or if he has engaged in a disappointing and inappropriate usurpation of the legislative function.

There are arguments on both sides. Some say that Roberts, not wanting to uphold the liberal reasoning behind Obamacare and an unprecedented expansion of federal power, concocted an opinion that would be limiting in scope, while still respecting the law and seeming nonpartisan. Others say that Roberts has unlawfully manipulated the mandate into a tax, thereby giving legs to a law that has none.

What the country thought was a debate over federal regulation of interstate trade has been transformed by Roberts into a debate over Congress' power to shape decisions through taxation. He writes in the majority opinion, "The mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS."

William Bennett

Tax power: The little argument that could

The dissenters, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, adamantly disagree: "[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it..."

    The dissent is right. Roberts recast the mandate as a tax, a rationale that was not in the law or the government's case. He rewrote the administration's position, baptized it, and then blessed it. Roberts' defenders argue that he did so to avoid a constitutional crisis, but he may have created another by judicially re-legislating policy, a policy paid for and enforced by what could be essentially the largest tax increase in American history.

    Roberts could have characterized the mandate as a tax and sent it back to the Congress, whose role is to legislate taxation, to redo. In my opinion, that's what he should have done. If Roberts is so concerned with the integrity of the Supreme Court, he should know that its integrity rises and falls with the integrity of its decisions and its adherence to the Constitution, not public perception.

    As it stands, the verdict is a serious setback for conservatives, but not a total loss. Roberts' majority opinion does deny Congress the power to mandate health care through the Commerce Clause, dealing a strong blow to future Congresses' ability to legislate social welfare programs. Since Wickard v. Filburn, modern conservatives have lamented the radical expansion of Congress' power to regulate interstate commerce under Article I of the Constitution. This decision may stem the tide.

    Furthermore, the Roberts opinion invalidated Obamacare's penalty on states that refuse the massive expansion of Medicaid subscribers. States can opt out of the expansion of Medicaid and not be subject to a loss of funding. This is no doubt a victory for federalism and the 26 states that filed lawsuits against the government.

      Just Watched

      Romney's health care response

    Romney's health care response 02:20
    PLAY VIDEO

      Just Watched

      Obama said mandate isn't tax in 2009

    Obama said mandate isn't tax in 2009 03:27
    PLAY VIDEO

      Just Watched

      Romney's past complicates mandate attack

    Romney's past complicates mandate attack 03:05
    PLAY VIDEO

    Nevertheless, Obamacare will stand until at least the fall elections. For President Barack Obama it is a mixed blessing. On the one hand, it gives the president a political shot in the arm. His signature legislative achievement -- a massive expansion of health care -- has been validated. On the other hand, Obama must now defend his health care bill as a tax increase, something he and other Democratic leaders adamantly denied before the Affordable Care Act was passed.

    In a 2009 interview with George Stephanopoulos, Obama was asked repeatedly whether his legislation was a tax. At one point Stephanopoulos said, "But you reject that it's a tax increase?" Obama replied, "I absolutely reject that notion."

    This flip-flop will not play well politically with the American people. Obama sold his health plan to the American people as anything but a tax. Had it been presented as the tax it is, it's doubtful it would have passed the Congress during the economic malaise of Obama's first years in office. The American people, particularly the tea party, may feel they are again victims of taxation without representation.

    For this reason, the verdict, while a serious judicial blow to conservatives, may favor them politically. Mitt Romney and Republican leaders can now campaign relentlessly against a massive, sweeping tax increase that will fall on the shoulders of an already weak economy. Romney is already reaping the rewards. His campaign reports that he raised $4.6 million in the 24 hours after the Supreme Court decision came down.

    Court ruling cements Obama's legacy?

    For the next six months, Obamacare will remain hyper-politicized. The terms of the national political debate now center on whether a stalled economy can bear the brunt of higher taxes and more government spending. The Supreme Court did not hand conservatives a lifeline. Elections have consequences and this fall's will be monumental.

    Follow us on Twitter @CNNOpinion

    Join us on Facebook/CNNOpinion

      The Affordable Care Act

    • ac kth health care tax _00002803

      In its ruling last week on the national health care law, the Supreme Court found that penalties the law places on people who don't buy health insurance count as a tax protected by the Constitution.
    • Chief Justice John Roberts

      With his opinion for a narrow majority of the Supreme Court, Chief Justice John G. Roberts Jr. has, for the first time since his confirmation as chief justice in 2005, breached the gap between the conservative and liberal wings of the court on a polarizing political issue.
    • sot Obama healthcare upheld_00003211

      In a landmark ruling that will impact the November election and the lives of every American, the U.S. Supreme Court on Thursday upheld the controversial health care law championed by President Barack Obama.
    • WASHINGTON, DC - JUNE 28: Tea Party activist William Temple, protests in front of he U.S. Supreme Court, on June 28, 2012 in Washington, DC. Today the high court is expected to rule on the constitutionality of the sweeping health care law championed by President Barack Obama.

      The court's opinion, in preserving the Patient Protection and Affordable Care Act, under Congress' taxing power, still gives a virtually unlimited sway to the power of the federal government, Stephen Presser writes.
    • The AARO has spent about $10.3 million on ads in favor of the Affordable Care Act.

      The Supreme Court is set to rule on the constitutionality of the Patient Protection and Affordable Care Act on Thursday. The landmark decision will dictate the way health care is administered to millions of Americans.
    • WASHINGTON, DC - MARCH 27:  General public with tickets to listen to a hearing on the Obamacare line up for entering the U.S. Supreme Court March 27, 2012 in Washington, DC. The Supreme Court continues to hear oral arguments on the Patient Protection and Affordable Care Act.  (Photo by Alex Wong/Getty Images)

      A look at the four issues the high court tackled separately during oral arguments in late March. Those issues are expected to play key roles in the judges' final decisions.