References to yesterday’s 98th anniversary of the assassination of Archduke Franz Ferdinand may be overwrought,\u00a0But contrary to those who see this as a win disguised as a loss inside of a tie wrapped in a stalemate, it was a loss.<\/p>\n

Yes, the Court may have drawn some lines with regards to the elasticity of the Commerce Clause, but\u00a0replacing the ever-elastic Commerce Clause with the taxing power isn’t necessarily a win. \u00a0Especially as conservatives have always held that property rights are a key underpinning of political rights. \u00a0There is\u00a0nothing here that necessarily keeps Congress from doing what it pleases, as long as the penalties are collected by the IRS. \u00a0What happens then, if they add on an additional provision that, much like student debt, you can work off your sins against the state, but you can work it off more quickly in certain favored ways?<\/p>\n

I’ve also heard it asserted that in the political climate, it will make it more difficult to pass large changes, since they’ll have to use the taxing power. \u00a0This seems overly-optimistic to me in at least three ways. \u00a0First, the ruling in no way begins to roll back nearly a century of mistaken Commerce Clause jurisprudence, and if anything has shown, it’s that the current boundaries of the Commerce Clause are plenty broad enough to contain all sorts of trouble.<\/p>\n

Second, I doubt that further massive changes are on the agenda, anyway. \u00a0The gargantuan administrative state that this law is going to require, the tens of thousands of pages of regulations and rules and boxes to check off, will provide more than enough machinery for Change as they stand.<\/p>\n

But mostly, it’s not as though the individual mandate was ever sold as a tax in the first place. \u00a0Taxes may be toxic, but the Court ruled – probably correctly – that something doesn’t have to be expressly declared a tax in order to be valid under the taxing authority. \u00a0Even the silver lining here is double-edged: what can be repealed under reconciliation can be passed under reconciliation. \u00a0And repeated use of the phrase, “taxing power” has the ability to drain the word “tax” of its deserved fearsomeness.<\/p>\n

In terms of this election, it’s certainly a net plus. \u00a0It will\u00a0make Obama’s life miserable on the campaign trail, as he finds himself explaining that “it all depends on what the meaning of ‘tax'” is. \u00a0Those who have been calling for him to play against type an imitate Clinton probably didn’t have that part in mind.<\/p>\n

It also means that it’s true, as Romney will now say, that “in order to get rid of Obamacare, you have to get rid of Obama.” \u00a0The Court essentially eliminated the\u00a0severability clause between Obama’s presidency and this law.<\/p>\n

But this election really is the game. \u00a0Not only would Obama’s re-election, or the retention of a Democrat Senate, ensure the eventual transformation of freeborn citizens into subjects, even a victory doesn’t guarantee victory. \u00a0The electoral wipeout of 2010, and its foreshocks (Scott Brown) and aftershocks (Keith Judd<\/a>), have left the Democrats undeterred. \u00a0To believe that they won’t use every Senatorial procedural option available to them is probably to hope for too much. \u00a0Even the hoped-for lame duck period between November and January will be fraught with opportunities for administrative mischief.<\/p>\n

If elections are to continue to have meaning, if indeed, they haven’t already been emptied of their power to reflect change in any but one direction, this one needs to count.
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