Last updated on 2011.11.11
It must hurt to be Tea Party right now. Just a couple months old, the Occupy Wall Street movement is steering public discourse at least as effectively as the Tea Party did in its nascent months. (Quick Google check: "Occupy Wall Street" generated 25,500 News search results last night; "Tea Party," 16,900.) Nationwide, conservatives had a relatively bad day at the polls yesterday. The GOP presidential candidates who best fit the Tea Party tenor are all failing to stave off the inevitable Romney-Obama matchup.
And on top of the eventual nomination of the progenitor of RomneyCare, Tea Partiers now see a conservative judge affirming the constitutionality of ObamaCare:
...[T]he latest decision written by Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia, could shift the prospects for challenges against the law, which are expected to reach the Supreme Court within months.
"If someone like Judge Silberman, who is among the most conservative judges in the country, is willing to say that this case has no merit, I think it's a very very good sign that some of the conservative justices on the Supreme Court are going to break ranks as well," Ian Millhiser, a policy analyst at the liberal think tank Center for American Progress, told NPR [Scott Hensley, "Conservative Appeals Court Judge Writes Opinion Upholding Health Law," NPR: Shots, 2011.11.08].
The other conservative on the D.C. Appeals Court, G.W.-Bush appointee Brett Kavanaugh, dissented, but he offered no fodder for the conservative cause. Keeping mum on the merits, Judge Kavanaugh simply said the court can't rule on a tax issue until the tax (in this case, the penalty for not buying health insurance) has been collected (under ObamaCare, starting 2014). Judge Kavanaugh peeks out from under this caution to suggest what could become a conservative defense of ObamaCare:
This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now. Courts naturally should be very careful before interfering with the elected Branches' determination to update how the National Government provides such assistance [Judge Brett Kavanaugh, dissenting, Seven-Sky v. Holder, No. 11-5047, 2011.11.08, pp. 64-65].
Judge Kavanaugh makes ObamaCare sound like a far cry from the Socialism! that the flagging Noem-lovers out there insisted it was (and that I wanted it to be!). If ObamaCare really does represent a shift toward privatization, Justices Scalia, Thomas, Roberts, and Alito ought to love it... and maybe I ought to sign up with Kristi and the Tea Party to fight for its repeal!
Update 2011.11.11 06:05 MST: More cause for Tea Party indigestion: big losses in local Montana elections.