Sunday, July 1, 2012

Obamacare Upheld Under a Flimsy - and Dangerous - Theory.

In my posting of 4/15/12, entitled "Obamacare at the Supreme Court," I suggested that Chief Justice John Roberts might join an already existing majority in order to be able to assign the writing of the opinion to himself; allowing him to make the decision "as broad or as limited as the Chief wants." Admittedly, I did not anticipate that the Chief would end up being the deciding vote to uphold Obamacare, especially given the fact that four Justices were prepared to throw out the entire law. The liberal media, highly critical of Roberts to date, was gushing with praise for his "courageous" vote.

So what happened? It is not unusual for Courts to look for ways to uphold the constitutionality of statutes passed by Congress. Here, Roberts ruled that the "individual mandate" could not be upheld as an exercise of the interstate commerce clause, as was argued before the Court. Rather, Roberts deemed the requirement to buy insurance as not being mandatory; a failure to do so merely meant that one was obligated to pay a sum of money to the IRS. Obama insisted it was not a tax; Congress in the legislation expressly stated in numerous places that it was a "penalty" for failing to buy insurance. But, according to Roberts, Congress anticipated that many people (up to 4 million) would not buy insurance; and Congress did not intend to make all those people "outlaws." Rather, according to Roberts, Congress was giving the people the option of buying insurance or paying a tax.

Undoubtedly, Roberts believed he was limiting the power of Congress by expressly stating that the mandate could not be upheld under the commerce clause. Said Roberts: "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and - under the government's theory - empower Congress to make those decisions for him." In this writer's opinion, Roberts was wrong both in considering the penalty to be a "tax," and in thinking that he was limiting the power of the federal government.

If this is a tax, it is the first of its kind. Roberts argued that Congress was merely encouraging people to buy insurance, otherwise they would have to pay a "tax." Roberts: "Congress's use of the taxing clause to encourage buying something is...not new." He pointed to tax incentives to buy homes and get a professional education. However, a "deduction" for buying a home, gives one a tax break. While not buying a home will mean not having that deduction, and likely a higher tax rate, we understand that not qualifying for a deduction is not the same as a tax. As the dissent said: "Taxes have never been popular...they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at the next election, which is never more than two years off."

The dissent continued: "We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty." Given the fact that Congress had the option to make it a "tax" and declined, meant that Roberts was not simply interpreting the statute - he was rewriting it. Besides, think of all the various taxes that you and I pay. Generally, we are taxed any time money changes hands (like the mob getting their "cut"). An employer pays an employee - taxed. Purchase of a good or service - taxed. We are also taxed for owning real or personal property, and investment property (stocks, some bonds). But under Roberts' decision, you can now be "taxed" for inaction - not buying the insurance. Again, completely different than giving a deduction for those who do buy the insurance.

Which leads me to my next point. If Congress can now tax us for failing to buy a product, how can that power in any sense be considered less all-encompassing than Congress' power under the commerce clause. Roberts tries to limit that power when he says: "Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today." Is he kidding? Of course it does! Congress already dictates fuel efficiency in cars. Why can't they order us all to buy small cars or hybrids - or pay a "tax" for failing to do so. Through the Food and Drug Administration the feds dictate certain requirements in food products and labeling. So what's to stop them from telling us we must buy certain food products - or pay a "tax." Given how many areas of life Congress has in some way regulated, there is no apparent limit on what Congress can order us to do - or pay a "tax" if we don't.

The outcome of all this is that the Court has now legitimized the lies of the Congress and the President when they repeatedly insisted that this was not a tax. Roberts thought it was more important to uphold the law under any theory imaginable, rather than insist on the integrity of our elected officials. We already know that politicians lie; now we know that the Court has sanctioned those lies. Said Roberts: "It is not our job to protect the people from the consequences of their political choices." Maybe not, but wouldn't it be nice if one branch of government insisted on truthfulness and integrity in our officials.

A side issue rarely commented on, is that Obamacare does not require illegal aliens to purchase the insurance. Nevertheless, they cannot legally be turned away from any emergency room. Maybe someone can explain to me why someone here illegally gets all the benefits but none of the obligations. If the estimate is between 10 and 20 million illegals in the country, why isn't it important for them to have insurance? Wasn't Obamacare intended to cover ALL the uninsured?

The only good news is that Obama now has to run for reelection after having signed into law (Obamacare) the biggest tax increase in our country's history; and having done so during one of our worst economic downturns. Not surprisingly, the White House still will not call the refusal to buy insurance a "tax." Said Press Secretary Jay Carney: "It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right?"

It should be quite clear to all now that there is not a single branch of the federal government that will protect your economic liberty. You have only that liberty that a Congress and President will allow you to have; there are no Constitutional restraints. As noted by various commentators, this decision makes the upcoming November election more important than ever. Do not think for one minute that this President and Reid and Pelosi do not understand the virtually limitless power that Roberts has handed to them. If the democrats retake the House, you can count on them to address their social equality agenda by "giving you the option" (as Roberts would say) of buying a certain good or service - or paying a tax. Even if you like Obamacare, you may not like what the next Congress decides to order you to buy - or pay a "tax."