…well, wait. What exactly did he do?
I don’t want to get between conservatives and our various displays of outrage and outbursts vituperation, but can we slow down for just a second and look at what we have in front of us right now? Here is, as best I can see, the lay of the land.
Congress can not use the Commerce Clause or the Necessary and Proper Clause to push mandates on us ever again. This is, as Harry Reid is fond of saying, settled law. The only way progressives can push their totalitarianism on us is through a humongous tax scheme. Congress has always had the power to create sweeping new taxes that would swallow up whole sectors of the economy and put them effectively under government control. They didn’t use that power because the people didn’t let them. In fact, the people made it very clear in years past that they should be ever so careful about those taxes because our country began as the result of a tax revolution and we’re not so far gone that we can’t launch another one.
But we got a bit sloppy and didn’t pay close attention, and Congress did get one of those huge taxes past us. They called it Obamacare.
Okay, okay. I know they didn’t call it a tax. They called it a mandate and they called it penalties. Eventually. Let us not forget that throughout the Obamacare debate, the Democrats and the administration couldn’t really decide in public whether they had created a tax or not. First it was, then it wasn’t, then it really looked like one, but they called it something else when they realized that America wanted a huge tax increase about as much as they wanted “Roseanne Barr Sings The Ring Cycle”. So, they called it a mandate with some penalties and left all the collection and compliance mechanisms pretty much they way they originated. They were so adamant that it wasn’t a tax that they ticked off the real extremists who wanted a single-payer system right now (and more on that later) and risked a huge loss in the next election. But they got what they wanted. On Christmas Eve in the middle of the night, they shoved Obamacare through and all was sweetness and light and puppies.
Except, not so much. See, that whole penalty thing was still a huge political problem because it looked and acted just like a tax. George Stephanopoulos pointed out to the President, in this now-infamous interview on national television that his little compliance and penalty scheme looked awfully familiar. The President’s answer, once you boiled out the bluster, amounted to “Nuh uh!”, a debating tactic that rarely works even among second graders in the heat of a Pokémon rules debate.
That exchange is important, by the way, because, the Democrats in Congress and President Obama wanted everyone to believe they had the semantic power of Humpty Dumpty from Through the Looking Glass.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’
Humpty, the clever egg that he was, knew that you could use a word any way you wanted and, if you were stubborn and confident enough, you could get everyone else to use it that way, too (see Jeff Goldstein at protein wisdom for any number of very smart essays on intentionalism, including this one where he disagrees with me entirely). That is what the Democrats did during the Obamacare debate. They created a tax and called it a penalty, and a mandate that wasn’t quite a mandate, until America simply accepted the definitions. But it was an illusion, like The New Transported Man from The Prestige.
Don’t believe me? Ask Nancy Pelosi, who’s had the word in her head for so long it couldn’t help but slip out. Justice Ruth Bader-Ginsburg very nearly let the cat out of the bag early on in the SCOTUS arguments.
A tax is to raise revenue. Tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk pool before they need medical care, and so it will be successful. If it doesn’t raise any revenue, if it gets people to buy the insurance, that’s what this penalty is. This penalty is designed to affect conduct. The conduct is to buy health protection, buy health insurance before you have need for medical care. That’s what the penalty is designed to do, not to raise revenue.
She was wrong. The “penalty” was designed to raise revenue because if it didn’t, then Obamacare would never have passed.
According to the Democrats, Obamacare had one big purpose: drive the cost of health care down. The mandate was the main instrument to accomplish that. Obamacare would either drive people into health insurance plans that Obamacare would then administer (indirectly at first, then more directly over time) or they would pay money to the government. That money would help pay for the increasingly more expensive health care for those people who need more. Essentially, the government would solve the so-called free rider problem by forcing everyone to pay for health insurance, once way or another.
That, folks, is a tax. You can call it whatever you like, and you will remember that the Democrats called it a lot of things, but what they built was a tax.
Don’t see it? Here. Let me turn it inside-out for you.
Obamacare said that everyone must pay a health care payment unless they got an exemption from the government. Those exemptions could be gotten by buying an approved health insurance plan from a private company, by being poor or elderly, or by being special to whatever government bureaucrats happen to be in charge today. If you get an exemption, you don’t have to pay. To be sure, they didn’t call them exemptions. They had a lot of other names for them, but they worked exactly like a tax exemption does for every other tax we have: you pay unless the government says you don’t have to.
Still not seeing it? Okay, let’s walk a few years into the future. Private insurance companies have largely gotten out of the health care business because they simply can’t afford it. Obamacare still requires that we all pay the government, but we can’t opt out now because there are no government-approved private health insurance policies available. Surprise! We’re now in the middle of a single-payer health care system into which we all pay our health care tax, just like they do in Britain, and Obamacare didn’t have to change one bit.
Does it look like a tax now?
Consider one more thing. The “penalty” that Justice Ginsburg said wasn’t a tax because it didnt’ raise revenue is going to raise an awful lot of revenue — some 54 billion dollars over ten years, according to the CBO’s latest estimate.
Now, Democrats and others who love Obamacare don’t want to call it a tax because there is no way in the world we would sit for one that started out at $5.5 billion a year and had no ceiling. If they had come out in 2009 and said “Heck yes this is a tax, a whopping huge one, and we’re going to exempt our friends and donors and labor unions from it so the only ones who will pay it are you middle class mooks who don’t have well-connected Democrat friends!” we would have taken to the streets in such numbers to make the Tea Parties look like the line outside an Occupy Whatever shower stall.
That’s why they stopped talking about tax increases and single-payer healthcare and started talking about fairness and mandates and penalties. That is why they won’t use the word now even though that is the only legal way to describe it.
Stop and ponder that for a moment. Obamacare must be a tax because if it is anything else, it goes away, every single bit of it. It is not a mandate — mandates are unconstitutional under both the Commerce Clause and the Necessary and Proper Clause.
That bears repeating, so let me say it again, in a way that catches the attention of the panicky throng.
Mandates are unconstitutional.
All of them. For any reason.
I don’t know about you, but that strikes me as a big effing deal. No longer can progressives use the “you must buy this because we say it’s good for you” argument that always works for them. No broccoli, no electric cars, no nothing.
Want to get creative, conservative law dogs? Come up with an argument that CAFE standards — especially the ridiculous new standards the administration set not that long ago — are essentially a big mandate that forces Americans to buy cars they would not otherwise buy. Force the big-government totalitarians to come to the American people with an honest argument that what they want is tax after tax after tax to make America more…whatever it is those utopian goons think it ought to be.
Now, I don’t want to climb very far into Chief Justice Roberts’ head to divine the intention in his decision, but I think I see what he did there. Congress passed Obamacare despite majority public opinion against it through the application of brute political force and an immense display of political deception. Justice Roberts addressed the deception in in the plainest way possible: he treated it seriously.
We ought to treat it seriously as well. In truth, we should have treated it seriously months ago but we didn’t. We conservatives sat back on our haunches and waited for the Supreme Court to do our job. Well, John Roberts didn’t do our work for us and we hates him like a Gollum hates Hobbitses. Except that our whining isn’t getting Obamacare repealed and it’s not winning over any voters to our side. It is making us look like a bunch of playground punks.
I’m up over 1700 words in this post and all the blogging experts say you’ve probably stopped reading by now, but I will add one last thing for you stalwarts who have come this far. Justice Scalia was right in his dissent. Never before had the SCOTUS dealt with a tax the way the Chief Justice did. Then again, SCOTUS had never seen anything like Obamacare — a whopping huge tax dressed up like a mandate specifically so it could get through Congress. Obamacare used an unprecedented amount of deception to take control of our wallets and our health care. Is it any surprise that it required an unprecedented court case to strip away the lie and reveal it for what it truly is? I get that lots of us didn’t see what Roberts saw. We bought the whole cock and bull story about mandates and penalties just as the Democrats wanted.
But now we see it, don’t we? We see that it really is a tax…don’t we? And we surely know how to kill a new tax — the biggest tax ever levied on the United States of America, pushed on us with a combination of outright lies and brute force.
That is, if we can stop beating on John Roberts long enough to do it.