- 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
Editor's note: William J. Bennett, a CNN contributor, is the author of "The Book of Man: Readings on the Path to Manhood." He was U.S. secretary of education from 1985 to 1988 and director of the Office of National Drug Control Policy under President George H.W. Bush.
(CNN) -- 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."
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.
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.
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.
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