You know, I think I may have set a land-speed record moving through the five stages of grief on this Obamacare thing.
As I understand it, Chief Justice Roberts held that the mandate was in fact constitutional because it’s a TAX, not a PENALTY. When it comes down to it, I have to agree 100% that Congress surely has the power to levy a tax on the American people, and as such was clearly within their rights to do so in this case.
Also, given that they have the right to absolve people of a tax burden, they’re entitled to do so in this case when someone has purchased health insurance. After all, if I donate money to a charity, I get a tax break. If I pay taxes and interest on my home mortgage, I get a tax break. If I have a kid, I get a tax break. So this is really just like that: EVERYBODY in the country gets a higher tax. If you have health insurance, you get a tax break. QED.
Although I disagree with the first step in the process (it is in my opinion, a penalty which is beyond Congress’ authority), I can’t argue with that logic at least.
That said, I do have a problem with how we got here:
1) I totally disagree with Chief Justice Roberts’ conclusion that the mandate is a tax. I’m not a lawyer (let alone a judge, let alone a Supreme Court Justice), so I’ll defer to the dissent, ably written by Justice Scalia. In it he basically picks apart quite systematically why the mandate was deliberately written as a fee, not a tax. I’m not sure why Chief Justice Roberts chose to see it the other way. That said,
2) This law would never have passed if it had been called what it is. The HHS secretary, the OMB director, Nancy Pelosi, Harry Reid, even the president himself purposefully and knowingly misled us by saying (as the latter did in an interview with George Stephanopoulos) that it wasn’t a tax. That’s because they know it would never have passed if they’d been honest about it. Then they went to court and argued that it was a tax. In order to rule this way, the Supreme Court had to conclude exactly the opposite of what was sold to the American voters when this was passed. Supporters of the law will be glad to have been vindicated. But in reality, it’s that we’ve been played. This is the country we live in.
3) This is just another example of (ab)using the tax code to drive social policy. Taxes should be used to raise funds in order to accomplish the absolutely necessary functions of a government. Just like “sin taxes” on cigarettes and sugary food, just like deductions for home ownership and raising a family (and getting married), now we have yet another pernicious way in which our government is trying to manipulate our actions and how we live our lives by using its power to tax to influence and control us and let those it favors off the hook. This is not fair, it is not just. It is wrong. And this is the country we live in.
1) I think this seals Obama’s fate this fall. I am awaiting (it likely won’t take as long as it takes me to finish writing this) the RNC’s ad repeating Obama and his supporters over and over that this is not a tax, then pointing directly to the Supreme Court’s ruling that the only way for it to be constitutional is for it to be a tax. And whoa, Nellie…what a tax it is! (Thousands of dollars a year for some!) November 2010 was an excellent case study in what happens when Americans realize the huge mistake they made during the most previous election. I think the winds just changed. And got stronger. This law is already highly unpopular. I think its unpopularity has been tempered by the feeling of the inevitability of its demise…we didn’t really have to—as Ms. Pelosi suggested—read it yet, because SCOTUS was going to scuttle it before it affected us. Now the framing of the argument is perfect, and its popularity is going to sink even more when people realize a) that it’s a huge tax increase, and b) that it was passed only because those who knew that all along were purposely lying about that fact. Hell. To. Pay. (And not from people like me who were opposed to it all along.)
2) Along those lines, I have never been a fan of courts intervening when we, the electorate, make mistakes in our policy decisions. Regardless of the constitutionality of the law, what it is is un-American. I don’t mean unpatriotic or anti-American. And I don’t mean that those who support it are either of those. What I mean that this law runs counter to what makes our Nation great: Individuals making their own decisions about their lives, and a government that is directed in its actions by us, not the other way around. Ultimately I’d much rather live in a country where the electorate politically and decisively throws out politicians who put together such monstrosities that are so counter to what we prize as a People and replace them with those who are more respectful of our wishes and our liberties (c.f., November 2010), than one that relies on nine dudes in black robes to ‘save us from ourselves.’ If we are to be a self-defined and self-sufficient Nation, we need to take active and positive roles in making sure our representatives in government truly are representative. Ultimately, I find greatest strength in a quote from Chief Justice Roberts’ own opinion today upholding this law: “It is not our job to protect the people from the consequences of their political choices.” Indeed.
3) Obscurely (and sadly so), the majority opinion did do something that should have been done long ago…it reigned in Congress’ powers under the Commerce Clause. In order to allow this to stand, the majority had to see the penalty as a tax (again, I disagree). That’s because they directly and specifically rejected the suggestion that under the Commerce Clause the Congress has the right to force us to engage in commerce. That the Administration had argued that in the first place (and, famously, Nancy Pelosi found the entire course of questioning un“serious”) is disheartening. But that the Supreme Court recognized that was a bridge too far may at least begin to chip away at the tremendously overbearing role the federal government plays in our lives under that mistakenly expansive authority.
Bottom line: Between now and November, get used to hearing that Elections Matter.
– Nick (ColoradoPatriot, from HHQ)