Thanks to Todd, who helps me with the technical side of this blog, for stepping in with the news emergencies while I was away. You’ve discussed how the Supreme Court upheld Obamacare in its insurance purchase mandate. Litigation on other Obamacare issues is getting under way. (There are now 23 lawsuits against the contraception and abortifacient mandate.)
What do you think about conservative Chief Justice Robert putting the best construction on Obamacare by construing its penalties as a tax? The reasoning was that people who refuse to buy health insurance will face a penalty, but it is being collected not by a court, as with a fine, but by the Internal Revenue Service. Therefore, it is as if a tax has been imposed, which you can get out of if you buy health insurance.
The bill itself never calls the penalties a tax, nor did its authors or President Obama himself (who specifically said it was not a tax).
Is this logical? Is this a proper function of a court opinion, to construe a bill despite its wording so that it can pass constitutional muster?
Some people are praising Justice Robert for his Solomonic compromise. Some conservatives are saying that at least he ruled against the overly-broad application of the Commerce Clause, which can subject just about everything to government supervision since just about everything has economic implications. This was, in fact, the basis of the administration’s defense of Obamacare, that Congress can make laws regarding interstate commerce. The court ruled that forcing people to buy something is not commerce, as such. But since that argument was found specious, Justice Robert kindly supplied an argument of his own that he could accept, even though the administration’s lawyers didn’t make it. Some Republicans are saying that, at least, defining Obamacare as a tax can allow them to score political points by attacking President Obama and the Democrats as having raised taxes.
But this strikes me as a very dangerous ruling. What other behavior could the Executive Branch require using the tax code to enforce fines apart from the safeguards of the Judicial Branch? Could General Motors get bailed out by imposing a tax on everyone who does not buy a Chevy?
Also, does anyone know whether the Affordable Health Care Act was initiated in the House of Representatives, rather than the Senate? Tax bills have to begin in the House. Maybe this bill did, coincidentally, have that origin, even though it was never presented as a tax bill. If not, since the Supreme Court declared it a tax bill, I’d think it would have to have been.
At any rate, this strikes me as a crisis not only with the Constitution–with the executive, legislative, and judicial branches all mixed up and infringing on each other–but with language itself, creating new meanings (“tax”) for existing words (“penalty”).