Editorial: Deception becomes precedent in health care ruling
“But your critics say it is a tax increase.” — George Stephanopoulos
“My critics say everything is a tax increase.” — President Barack Obama
ABC News interview, Sept. 20, 2009
By the president’s assertion, then, Supreme Court Chief Justice John Roberts has simultaneously handed Obama the most significant victory of his term as well as given his opponents the most potent criticism possible for the sweeping health insurance reform bill passed in 2010.
The individual mandate to buy health insurance that is the linchpin of the Patient Protection and Affordable Care Act was upheld June 28 when Roberts, who was appointed by President George W. Bush, joined the court’s four liberal justices in a 5-4 decision.
Sensing — correctly — that the individual mandate would be struck down as a violation of the U.S. Constitution under the Commerce Clause, the weeks leading up to the Supreme Court decision were filled by preemptive vivisections of the Roberts court as corporate shills who were poised to take an “unprecedented” action by nullifying Obama’s signature achievement.
Nevermind that Obama and the Democrats’ “achievement” was rammed through Congress by the most chicanerous of parliamentary machinations and the barest majority of 218 votes in the House of Representatives. Not to mention the use of reconciliation in the Senate to overcome Republican Scott Brown’s victory in Massachusetts in January 2010 that deprived the Democrats of their 60-vote, filibuster-proof majority.
That Brown was elected to the late Sen. Ted Kennedy’s seat in the deep blue Bay State should have set off alarms among the more sensible members of the Democrat party, but unfortunately none of those types are in a leadership dominated by then-House Speaker Nancy “We have to pass the bill to find out what’s in it” Pelosi.
The law was so popular that the nation handed Obama’s party the worst “shellacking,” in the president’s words, that any party had absorbed in a midterm since the 1940s. The Democrats lost 63 House seats, 6 Senate seats and saw the GOP take 10 governor’s races and win 19 state legislatures.
The reason for the “shellacking” was simple. The American people knew Obamacare, as it came to be known, represented a trillion-dollar entitlement program destined to bust an already bloated budget and would inevitably drive up the cost of everything — including their taxes.
Upon the news that the individual mandate had indeed been found unconstitutional under the Commerce Clause argument but was constitutional under Congress’ power to tax in what is surely one of the most tortured legal decisions ever rendered, the supporters of the law who’d only the day before been decrying the corrosive effect of narrow 5-4 decisions on public policy suddenly embraced the court’s wisdom and Roberts’ courage.
No charge — other than “death panels,” probably — was fought harder against by Democrats than the tax argument.
“I absolutely reject that notion,” Obama told George Stephanopolous in that ABC News interview about whether the individual mandate was a tax.
But then the challenges to Obamacare, including the one Alaska joined among 25 other states, reached the courtroom and suddenly U.S. government lawyers were arguing precisely that the power to tax made the individual mandate legal.
If the stakes for the nation weren’t so high, the absurd contradictions in both the government’s and Roberts’ arguments would be worth a chuckle. On one day before the Supreme Court, the government’s attorney argued that the mandate was not a tax and was allowed under the Commerce Clause because of the “unique” nature of the health care market allowed the government to regulate a citizen’s inactivity, or failure to purchase a certain product.
The next day, the same U.S. attorney argued that that the individual mandate was a tax, and therefore couldn’t be challenged under the Anti-Injunction Act (which prohibits challenging a tax until it has been collected).
So, it’s a tax when it suits one argument and not a tax when it suits another argument. That Roberts bought this nonsense will forever be a part of the legacy he is reported to care so much about.
Rather than send the act back to Congress to pass the mandate as a tax, not as an exercise of Commerce Clause authority, the Supreme Court simply re-wrote the law from the bench and declared it to be a tax.
Roberts famously compared himself to an umpire impartially calling balls and strikes during his confirmation hearings in 2005. In the Obamacare ruling, Roberts saw the catcher drop the ball on a play at the plate, and called the runner out anyway.
What Roberts did on Obamacare was akin to calling the runner out because he would have been out if the catcher had held on to the ball.
If Congress had passed the mandate as a tax, it would have been constitutional from the start. So too, would a baserunner be out if the catcher holds on to the ball.
But this isn’t what happened. Congress couldn’t call it a tax because the Democrats didn’t have enough Cornhusker Kickbacks and Louisiana Purchases to pass it as a tax. So they told the American people it was something else.
The American people saw through this transparent falsehood, and they proved it at the ballot boxes in 2010.
What the Supreme Court did was legitimize bait-and-switch lawmaking, legislating from the bench as a substitute for a Congressional do-over, and an expansion of taxing power that can be used to compel any sort of behavior a temporary majority may deem fit.
The American people won’t have any trouble seeing this decision for what it is, either.